history of english law

History of English lawLLB

Second edition 1998 405

A.D.E. Lewis

This guide was prepared for the University of London by:

A.D.E. Lewis, MA, LLB, Senior Lecturer in Laws, Faculty of Laws, University College London.

This is one of a series of subject guides published by the University. We regret thatdue to pressure of work the author is unable to enter into any correspondence relatingto, or arising from, the guide. Any comments on this subject guide, favourable orunfavourable, would be most welcome and should be addressed to:

External PublicationsRoom 35, Senate HouseUniversity of LondonMalet StreetLondon WC1E 7HUUnited Kingdom.

http://www.lon.ac.uk/external/

© University of London 1998ISBN 07187

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Table of contents

Table of contentsChapter 1: General introduction..............................................................................1

Aims ............................................................................................................................1Objectives ....................................................................................................................1How to use this guide ................................................................................................1General reading list ....................................................................................................2Study time ..................................................................................................................4The examination..........................................................................................................4

Chapter 2: The Anglo-Saxon legal system ..............................................................5Essential reading ........................................................................................................5Further reading............................................................................................................5Introduction ................................................................................................................5Anglo-Saxon laws and charters ..................................................................................5The royal witan ..........................................................................................................6Local courts and local justice ....................................................................................6Changes after the Conquest ........................................................................................7Learning outcomes......................................................................................................8Question ......................................................................................................................8

Chapter 3: The courts of the common law..............................................................9Essential reading ........................................................................................................9Further reading............................................................................................................9Introduction ................................................................................................................9The King’s Council ..................................................................................................10The Court of Exchequer ..........................................................................................10The Common Bench ................................................................................................11The King’s Bench ....................................................................................................12The itinerant justices ................................................................................................13The Court of Chancery ............................................................................................14Prerogative and conciliar courts ..............................................................................15Appellate tribunals ....................................................................................................16Learning outcomes....................................................................................................18Questions ..................................................................................................................18

Chapter 4: Mercantile, seigniorial and ecclesiastical courts ..............................19Essential reading ......................................................................................................19Further reading..........................................................................................................19Introduction ..............................................................................................................19Mercantile courts ......................................................................................................19Seigniorial courts ......................................................................................................20Ecclesiastical courts ..................................................................................................20Learning outcomes....................................................................................................21Question ....................................................................................................................21

Chapter 5: Procedure ..............................................................................................23Essential reading ......................................................................................................23Further reading..........................................................................................................23Introduction ..............................................................................................................23Writs ..........................................................................................................................24

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History of English law

Bills............................................................................................................................24Forms of action ........................................................................................................25Methods of proof ......................................................................................................26Witnesses and evidence ............................................................................................27Execution of judgments ............................................................................................28Learning outcomes....................................................................................................28Question ....................................................................................................................28

Chapter 6: Land law................................................................................................29Essential reading ......................................................................................................29Further reading..........................................................................................................29Introduction ..............................................................................................................29Feudalism and tenures ..............................................................................................30Estates for life, conditional fees and the entail ........................................................31The term of years ......................................................................................................33Unfree tenures ..........................................................................................................34Uses ..........................................................................................................................35Trust and future executory interests ........................................................................36Perpetuities and settlements......................................................................................37Learning outcomes....................................................................................................38Questions ..................................................................................................................38

Chapter 7: Contract and tort ................................................................................39Essential reading ......................................................................................................39Further reading..........................................................................................................39Introduction ..............................................................................................................40Debt, detinue and covenant ......................................................................................40Trespass and case ......................................................................................................41Assumpsit ..................................................................................................................43Conversion, deceit and defamation ..........................................................................46Alternative remedies for breach of contract ............................................................46Doctrine of consideration ........................................................................................47Rise of negligence ....................................................................................................48Learning outcomes....................................................................................................49Questions ..................................................................................................................49

Chapter 8: Criminal law ........................................................................................51Essential reading ......................................................................................................51Further reading..........................................................................................................51Introduction ..............................................................................................................51Appeals and indictments ..........................................................................................51Felony, trespass and misdemeanour ........................................................................53Benefit of clergy, pardon and sanctuary ..................................................................54Learning outcomes....................................................................................................55Questions ..................................................................................................................55

Appendix: Some wider reading ............................................................................57

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Chapter 1: General introduction

Chapter 1

General introductionThe subject History of English law is, as the title suggests, rather a historical than alegal study. As such, the study may be seen as supplementary to a degree in law ratherthan of the essence. Yet few legal systems in the modern world have such a rich andunbroken past as the common law and many of its still present features — for examplethe concentration of the courts and legal business in London to the virtual exclusionof major provincial centres — can only be properly understood in the light of itshistory. This subject then provides historically what the compulsory subject onjurisprudence gives philosophically, a context in which the study of the law is to beunderstood.

The modern common law has roots which go back at least as far as the NormanConquest of 1066: some elements, such as the jury and the writ, are even older.Surveying a thousand years of legal history involves making some choices of what to study and what to leave out. This subject concentrates on four major areas:

• the system of courts, trial and procedures — sometimes called institutional history

• the development of the land law

• the history of contract and tort

• a brief history of criminal law.

AimsAlthough you will need to become familiar with a good deal of detail, the aim of thesubject is to enable you to understand the broad themes of the development of thecommon law and what factors influenced its path. To pursue this end you will need todo a considerable amount of reading in the scholarly literature, both in books andarticles, and in original sources to which this short guide should be seen as a prelude.In doing this you will encounter ideas and detail which may at first be puzzling anddifficult: this is particularly so with reading old cases. You will need to persevere as itis only with a depth of reading behind you that you can really hope to master theessential ideas you will need to do well in the examination.

ObjectivesIn studying the history of English law you will deepen your appreciation of the courseof development of English law both in the past and in its present. Such an awarenessis of inestimable benefit to both the student and the practitioner of law.

How to use this guideThis guide can be used in a number of ways. The best way to start is to read itthrough once or twice by itself in order to familiarise yourself with the scope of thesubject. As noted above seeing what is included and what is excluded is important.You may wish to read more widely — indeed it is probably a good idea to do so —but you must be sure to cover all those elements which form part of the examination.Next you should turn to one or more of the standard textbooks listed immediatelybelow and ‘speed-read’ through it — again in order to get an idea of its contents as awhole. You will see that there are some topics in the textbooks which are given moreattention than in this guide. Only when you have gained some idea of the range ofissues will you be in a position to work through the material more steadily.

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First read the appropriate chapter in this guide, then use the reading suggestions at thehead of each chapter to study the textbooks on the same topic. If there are somematerials mentioned, statutes or cases, next have a look at these. Then go back to theguide or the textbook and try to follow the arguments and explanations offered in thelight of your reading of the original materials. You will not at first be in a position tobe very critical but the process of going to and fro from textbook to materials willenable you to get a better understanding of the latter. As you progress through thesubject you should find yourself able to suggest for yourself explanations of why thelaw developed as it did. Only when you have read guide, textbook and any relevantmaterials should you proceed to read articles in books or journals. It is here that thedetailed scholarship of legal history is done and upon which the writers of monographsand textbooks build when they write their more extended treatments. Some articlesare of fundamental importance to the subject and these will be brought especially toyour attention.

In every chapter you will come across questions in boxes. These are questions designedto help you reflect on what you have just read. You will make most progress if youattempt to answer each of these questions as you come across them in the text. Youshould refer back to the reading and then write your answers down or discuss themwith someone else.

We include a list of ‘learning outcomes’ at the end of each chapter. Learning outcomestell you what you should have learned from that chapter of the subject guide and therelevant reading. You should pay close attention to the learning outcomes and usethem to check that you have fully understood the topic(s).

You will also find sample examination questions at the end of all the chapters. Theseare usually taken from previous examinations in this subject. You should try planningand writing answers to these questions as part of your study and revision programme.You will find notes after each question to give you some idea of the areas you willneed to explore in your answer.

General reading listBooks

The following books will be of general use throughout the subject. There are frequentreferences to them in the course of this guide. Those asterisked are recommended forpurchase.

*Baker, J.H. An Introduction to English Legal History. (London: Butterworths, 1990)

3rd edition [ISBN 0 406 53101 0]. This is the best and widest ranging textbook,

the product of its author’s unrivalled knowledge of the sources both published

and unpublished. Each chapter contains a useful bibliography.

*Baker, J.H. and Milsom, S.F.C. Private Law before 1750: A Sourcebook. (London:

Butterworths, 1990) [ISBN 0 406 01641 0 (limp)] (referred to as B&M). The

authors of the two best textbooks have combined to make available, sometimes

for the first time in print, the basic sources (statutes, cases and other materials)

for the study of the common law. The book is not easy for the beginner however

as it lacks a commentary and is best used as a reference tool together with a

textbook or this guide.

*Milsom, S.F.C. Historical Foundations of the Common Law. (London: Butterworths,

1981) 2nd edition [ISBN 0 406 62503 4 (limp)]. Stronger on ideas and concepts

than detail this is a perfect foil to Baker’s Introduction. The scope of the text both

in point of coverage and of chronology exactly fits the syllabus of this subject. It

is not easy reading, however, and is best left until you have gained some grip on a

subject.

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Chapter 1: General introduction

*Simpson, A.W.B. A History of the Land Law. (Oxford: Oxford University Press, 1986)

[ISBN 0 19 825536 5 (limp)]. A fuller and more accessible account of this difficult

topic than is available in either Baker or Milsom.

The following are useful for general reference:

Cornish, W.R. and Clarke, G. de N. Law and Society in England 1750-1950.

(London: Sweet & Maxwell, 1989) [ISBN 0 421 31150 9]. A lively account of

the more modern history which takes a more overtly social approach than this

syllabus requires.

Holdsworth, W. A History of English Law. Volume 1. (London: Methuen, 1922: many

subsequent editions). This first volume of Holdsworth’s massive 16-volume

history is still useful for the detail of the institutional history of the courts

although Holdsworth’s general interpretation is not now much followed.

Pollock, F. and Maitland, F.M. A History of English Law. Two volumes. (Cambridge:

Cambridge University Press, 1898 reprinted 1968) 2nd edition [ISBN 0 521

07061 9; 0 521 09515 8 (limp)]. The classic history of the early common law

which continues to influence the subject past the centenary of its first appearing

in 1896. For reference only.

ArticlesThere is a vigorous tradition of academic scholarship in this field with some of whichyou ought to become acquainted. There are a number of specialist periodicals ofwhich the prominent are:

• the Journal of Legal History

• the Law & History Review

• the American Journal of Legal History.

The Dutch journal of legal history, Tijdschrift voor Rechtsgeschiednis, carries theoccasional important article in English on our subject. The mainstream English academicpress, the Cambridge Law Journal, the Oxford Journal of Legal Studies and the LawQuarterly Review, together with the leading American law school journals, all regularlypublish legal history articles. The proceedings of the biennial British Legal HistoryConference (since 1972) are an important additional source. In recent years, thesehave been published by Hambledon Press which also publishes a series of collectedpapers by leading legal historians (including Milsom, Baker, Simpson and Brand).

SourcesYou can find many of the original sources you will need in the volume edited by Bakerand Milsom listed above. An important additional resource is the series of annualvolumes of Selden Society publications (London, 1887-continuing), texts andtranslations of important unpublished reports and records, some of which appearindividually below. The early printed editions of Year Books (London 1678-9) haverecently been reprinted and should be available in all good law libraries but they areprinted in gothic (‘black letter’) script and are in Law French which reduces theiraccessibility. For those willing to make the effort, there is a useful Manual of LawFrench by J.H. Baker (Aldershot: Scolar Press, 1990) 2nd edition [ISBN 0-85967-345-1]but this should be regarded in the nature of an extra-curricular pursuit. The earlyEnglish law reports, covering the 16th to the 19th centuries, are to be found in themulti-volume reprint entitled English Reports in the law reports section of the lawlibrary. The good law student should be familiar with this from references in ordinarycase-law subjects. It is accompanied by a slim volume (and a wall chart) which liststhe customary abbreviations and directs the reader to the appropriate reprint volume.Note that the pages of each reprint volume are separate from the pages of the original

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report which are always used in giving references (e.g. Ashford v Thornton (1818) 1B&Ald 405, on page 405 of the first volume of Barnwell and Alderson’s Reports, isto be found on page 149 of volume 106 of the English Reports).

Study timeThe study of legal history requires a good deal of reading. You should aim to devote aproportion of your time to the close study of this guide and its suggested readings asoutlined above. But you should also aim to do a certain amount of wider reading bothin legal history and general history. Some suggestions for this type of reading will befound at the very end of this guide.

The examinationThere are usually nine essay questions on the examination paper of which you areexpected to answer four. You will need to divide your time evenly among the fouranswers. There are two or three on the institutional part, at least two on land law, twoon tort and contract and one (only) on criminal law. You can see from this that it ispossible to avoid studying some topics altogether. If you do this you could still do wellin the examination but it would depend upon your being able to select four questionsfrom a smaller number of choices. You also need to consider that some topics requirea knowledge of material covered in other parts of the subject: for the history of thecriminal law, for example, you will need to know something of the origins of trial byjury which is covered in institutions.

Not too much need be made of the fact that this subject is examined by essay ratherthan ‘problem’ questions: the same qualities of clarity and logical precision whichmark out a good answer to a legal problem will earn high marks in an essay answer in legal history. The main difference is that, whereas the problem question, whenanalysed, gives you a clear guide to how to proceed towards an answer, an essay ismore open-ended and requires a more active role from you in deciding what particularline to take. It is truly said that there are no right answers to legal history questions,but plenty of wrong ones! Your job is to take a line of argument which you cansupport with reasons leading to a plausible conclusion. There are, in truth, only a limited number of questions which can be posed (though the examiner will usuallytry to find a new formulation which requires some thought from the student) and aclose study of past examination papers in the History of English law will give a goodidea of what these are. Many of these possible topics are reflected in the questionsposed in the course of this guide at the end of each chapter.

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Chapter 2: The Anglo-Saxon legal system

Chapter 2

The Anglo-Saxon legal systemEssential reading

Baker, J.H. An Introduction to English Legal History. (London: Butterworths, 1990)

3rd edition [ISBN 0 406 53101 0] Chapters 1-2.

Milsom, S.F.C. Historical Foundations of the Common Law.

(London: Butterworths, 1981) 2nd edition [ISBN 0 406 62503 4 (limp)] 1-23.

Pollock, F. and Maitland, F.M. A History of English Law. Two volumes.

(Cambridge: Cambridge University Press, 1898 reprinted 1968) 2nd edition

[ISBN 0 521 07061 9; 0 521 09515 8 (limp)] Volume I, Chapter 1.

Further readingBartlett, R. Trial by Fire and Water. (Oxford: Oxford University Press, 1986)

[ISBN 0 19 821973 3].

Hyams, P. ‘Trial by ordeal: the key to proof in the early common law’ in Arnold,

M.S. et al.. (eds) On the Laws and Customs of England: Essays in honor of S.E.

Thorne. (Harvard: Harvard University Press, 1981) [ISBN 0 8078 1434 2] 90.

Simpson, A.W.B. ‘The Laws of Ethelbert’ in Arnold et al. (1981) 3.

Simpson, A.W.B. Legal Theory and Legal History. (London and Ronceverte:

Hambledon Press, 1987) [ISBN 0 907628 83 4] 1.

IntroductionAlthough there remains a truth in Maitland’s dictum that the defeat of Hastings was acataclysm that transformed the future history of English law it is now appreciated thatthe Norman conquest is an inadequate starting point for that history. The Normaninvaders eventually constructed a highly centralised legal system upon Anglo-Saxonfoundations. Notable among these survivals from the Anglo-Saxon system were thewrit, a written executive order which came to be the starting point for many legalprocedures, and the jury. Moreover the local justice retained its Anglo-Saxon patternwell into the early modern period. The word ‘writ’ is itself Anglo-Saxon, one of thefew such words to be adopted by the French-speaking common law. The jury has amore complex ancestry as will be seen. Both these latter features will be exploredmore fully later in the guide (see Chapter 5).

This chapter deals with Anglo-Saxon legal sources, the functions of the Royal Courtand the local courts, the procedures for trying cases and the changes effected by theNorman conquest.

Anglo-Saxon laws and chartersThe most noticeable feature of the Anglo-Saxon legal system is the apparentprevalence of legislation in the form of law codes. The early Anglo-Saxon invaderswere organised in various small kingdoms often corresponding to later shires orcounties. The kings of these small kingdoms issued written Laws, one of earliest ofwhich is that attributed to Ethelbert, king of Kent, ca.560-616.1 The Anglo-Saxon lawcodes follow a pattern found in continental Europe where Germanic invaders of theformer Roman empire encountered government dependent upon written sources of

1See Simpson (1981).

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law and hastened to display the claims of their own native traditions by reducing themto writing. These laws should not be thought of as operating like modern legislation.Rather they are educational and political tools designed to demonstrate standards ofgood conduct rather than act as criteria for subsequent legal judgment.

Although not themselves sources of law, Anglo-Saxon charters are a most valuablehistorical source for tracing the actual legal practices of the various Anglo-Saxoncommunities. A charter was a written document from a king or other authorityconfirming a grant either of land or some other valuable right. Their prevalence in theAnglo-Saxon state is a sign of sophistication. They were frequently appealed to andrelied upon in litigation. Making grants and confirming those made by others was amajor way in which Anglo-Saxon kings demonstrated their authority.

Question

What were the characteristic features of Anglo-Saxon legislation?

The royal witanThe royal council or witan played a central but limited role in the Anglo-Saxon period.The main feature of the system was its high degree of decentralisation. The interferenceby the king through his granting of charters and the activity of his witan in litigationare exceptions rather than the rule in Anglo-Saxon times.

Local courts and local justiceThe Shire Court

The most important court in the later Anglo-Saxon period was the Shire or CountyCourt. It is of interest that many shires (such as Kent and Sussex) were in the earlydays of the Anglo-Saxon invasions the centre of small independent kingdoms. As thekings first of Mercia and then of Wessex slowly extended their authority over thewhole of England they left the Shire Courts with overall responsibility for theadministration of law. The Shire met in one or more traditional places, earlier in theopen air and then later in a Moot or meeting hall.

The meeting of the Shire Court was presided over by an officer, the shire reeve orsheriff, whose appointment came in later Anglo-Saxon times into the hands of theking but had in earlier times been elective. The sheriff was not the judge of the court,merely its president. The judges of the court were all those who had the right and dutyof attending the court, the suitors. These were originally all free male inhabitants ofthe neighbourhood but, over time, suit of court became an obligation attached toparticular holdings of land. The sessions of a Shire Court resembled more closelythose of a modern local administrative body than a modern court. It could and did actjudicially but this was not its prime function. In the Shire Court, charters and writswould be read out for all to hear.

Hundred CourtBelow the level of the shire each county was divided into areas known as hundreds(or wapentakes in the north of England). These were original groups of families ratherthan geographical areas. The Hundred Court was a smaller version of the shire,presided over by the hundred bailiff, formerly a sheriff’s appointment, but over theyears many hundreds fell into the private hands of a local large landowner. We are notwell-informed about Hundred Court business, which must have been a mix of theadministrative and judicial, but they remained in some areas an important forum forthe settlement of local disputes well into the post-Conquest period.

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Chapter 2: The Anglo-Saxon legal system

Question

Were the local courts or the royal court more important in the Anglo-Saxon period?

ProcedureThe Anglo-Saxon system put an emphasis upon compromise and arbitration: litigatingparties were enjoined to settle their differences if at all possible. If they persisted inbringing a case for decision before a Shire Court then it could be determined there.The suitors of the court would pronounce a judgment which fixed how the case wouldbe decided: legal problems were considered to be too complex and difficult for merehuman decision and so proof or demonstration of the right would depend upon someirrational, non-human criterion. The normal methods of proof were oath-helping orthe ordeal.

Oath-helpingOath-helping involved the party undergoing proof swearing to the truth of his claim ordenial and having that oath reinforced by five or more others, chosen either by theparty or by the court. The numbers of helpers required and the form of their oathdiffered from place to place and upon the nature of the dispute. If either the party orany of the helpers failed in the oath, either refusing to take it or sometimes evenmaking an error in the required formula, the proof failed and the case was adjudged tothe other side. It appears surprising to moderns that so important a matter might besettled by one and his friends falsely swearing an oath. In a society in which each wasknown to his neighbour and in which religious emphasis was placed upon the sanctityof an oath, the system was probably more satisfactory. As ‘wager of law’ it remaineda way of determining cases in the common law until its abolition in the 19th century.

OrdealsThe ordeal offered an alternative for those unable or unwilling to swear an oath.2 Thetwo most common methods were the ordeal by hot iron and by cold water. Theformer consisted in carrying a red-hot iron for five paces: the wound was immediatelybound up and if, on unbinding, it was found to be festering the case was lost. In theordeal by water the victim, usually an accused person, was cast bound into water: ifhe sunk he was innocent, if he floated, guilty. Although for perhaps understandablereasons the ordeals became associated with trials in criminal matters they were inessence tests of the truth of a claim or denial of a party and appropriate for trying anylegal issue.

Dooms or judgmentsThe allocation of a mode of proof and who should bear it was the substance of theShire Court’s judgment or doom and perhaps followed known customary rules ofwhich we have no knowledge. Some measure of discretion must have existed in thedetermining of the outcome of an ordeal by hot iron but result of the cold water andthe oath-helping would have been obvious to all.

Question

How were cases in Anglo-Saxon courts tried?

Changes after the ConquestThe feudalisation of the English countryside effected in the wake of the NormanConquest worked some changes in this pattern of local justice which will be noted inits place below. This aside, and with the addition of the borough courts, the pattern oflocal justice established in Anglo-Saxon times survived with steadily decreasing

2 A full discussion is contained in Bartlett.

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effectiveness until the mid-17th century. The dislocations of the Civil Wars 1641-9seem to swept many of them away, leaving little enthusiasm for their re-establishmentafter the Restoration.

Learning outcomesBy the end of this chapter and the recommended reading you should be able to:

• state the significance of the Anglo-Saxon law codes

• outline the features of the common law derived from the Anglo-Saxons

• describe the local court system of the Anglo-Saxon period.

QuestionWhat elements of the Anglo-Saxon legal system survived the Conquest?

The local Courts of the Shire and Hundred: these remained important until at least

the 17th century. The writ: this was transformed from a executive order into a means

of starting a lawsuit.3 The jury: there is some evidence of sworn inquests before the

Conquest.4

3 See further Chapter 5 sectionon writs on page 24 of this

subject guide.4 See further Chapter 5 section

on methods of proof on page 26of this subject guide.

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Chapter 3: The courts of the common law

Chapter 3

The courts of the common lawEssential reading


3rd edition [ISBN 0 406 53101 0] 16-26, 44-61, Chapters 6, 7, 9.


(London: Butterworths, 1981) 2nd edition [ISBN 0 406 62503 4 (limp)]

25-36, 52-55, 60-70, 82-96.

Further readingBaker, J.H. Spelman’s Reports, volume II. (London: Selden Society volume 94,

1978).

Baldwin, J.F. The King’s Council in England. (Oxford: Clarendon Press, 1913).

Blatcher, M. The Court of King’s Bench 1450-1550. (London: Athlone Press, 1978)

[ISBN 0 485 134128].

Guy, J.A. The Cardinal’s Court. (Hassocks: Harvester Press, 1977)

[ISBN 0 85527 829 3].

Guy, J.A. The Public Career of Sir Thomas More. (Brighton: Harvester Press, 1980)

[ISBN 0 85527 963 X] Chapters 2-5.

Harding, A. ‘Plaints and Bills’ in Jenkins, D. Legal History Studies 1972.

(University of Wales Press, 1975) [ISBN 0 7083 0588 1] 65.

Hastings, M. The Court of Common Pleas. (Ithaca: Cornell University Press, 1947).

Milsom, S.F.C. ‘Trespass from Henry III to Edward III’ (1958) 74 Law Quarterly

Review, 195, 407, 561 reprinted in Milsom, S.F.C. Studies in the History of the

Common Law. (London and Ronceverte: Hambledon Press, 1985)

[ISBN 0 907628 61 3] 1-90.

Squibb, G.D. Doctors Commons. (Oxford: Oxford University Press, 1977)

[ISBN 0 19 825339 7].

Squibb, G.D. The Court of Chivalry. (Oxford: Oxford University Press, 1959).

Wiswall, F. The Development of Admiralty Jurisdiction and Practice.

(Cambridge: Cambridge University Press, 1971) [ISBN 0 521 07751 6].

Wurzel, H. ‘The Origin and Development of Quominus’ (1939) 49 Yale Law Journal 39.

IntroductionThe courts of the common law lie at the heart of the system. As we shall observewhen we explore procedure in Chapter 5 the essence of the early common law lies inthe system of pleading cases in court. It is here that the rules were made. Out of theoriginal jurisdiction of the King’s Court, the curia regis (King’s Court) of the Normankings, itself a descendant of the Anglo-Saxon witan, sprang a number of discretejudicial bodies each with a particular role: King’s Bench, Common Pleas, Exchequerand Chancery. The overriding principle was that each administrative organ ofgovernment possessed jurisdiction to determine any legal problem arising in thecourse of its business. Added to this the king could order a tribunal to entertain aparticular person’s complaint by special order. This original royal favour came to be

10


obtainable by anyone willing and able to pay the price of the writ containing the royalcommand. As the importance and significance of the local courts diminished, moreand more business came to be diverted into the various royal jurisdictions.

This chapter deals with the juridical role of the King’s Council and the various courtswhich derived from it: the Court of the Exchequer, the Common Bench, the King’sBench and the itinerant justices as well as the Court of Chancery and the variousconciliar tribunals which emerged from the same source a little later. It closes with atreatment of the appellate system.

The King’s CouncilReading


3rd edition [ISBN 0 406 53101 0] 14-16, 135-9.

Baldwin, J.F. The King’s Council in England. (Oxford: Clarendon Press, 1913).

The witan of the Anglo-Saxon kings became the King’s Council or Court (curia regisin Latin) after the Conquest. The shift from native Anglo-Saxon terminology to Latinwas symptomatic of the move towards a more continental orientation in English politics.The Norman kings, and their Angevin successors to a greater extent, maintainedextensive territorial interests in continental Europe. Between the Conquest and the16th century, the King’s Council combined political, administrative, legislative andjudicial functions. In politics it advised on issues of war and peace and the raising ofrevenue. In administration it made day-to-day executive decisions of government. Itlegislated in the often extended intervals between parliaments and it made judicialdecisions on its own authority whenever any matter of state real or imagined wasalleged. Many of the same people who served the king in a governmental capacity asmembers of his council shared his social life so that on occasion the king’s councilmight find itself making arrangements for feasts and entertainments or even games oftennis. The council remained for long wholly undifferentiated in function.

Between the 11th and 16th centuries, however, a slow process saw the specialisationof some of these functions in the hands of separate bodies. It was in this way that thefamiliar courts of the common law had their origin.

Question

Why do you think the judicial role of the King’s council came to be devolved?

The Court of ExchequerReading


3rd edition [ISBN 0 406 53101 0] 56-59.


(London: Butterworths, 1981) 2nd edition [ISBN 0 406 62503 4 (limp)] 31-2, 62.

Wurzel, H. ‘The Origin and Development of Quominus’ (1939) 49 Yale Law Journal 39.

The Exchequer was the mediaeval equivalent of the Treasury. It was responsible forthe collection of money due to the king. The actual receipt of cash took place in theLower Exchequer where debtors, both private individuals and official collectors ofrevenue, would bring money. There it would be weighed, tested for quality andcounted. Any dispute arising from the accounting process would be resolved in theUpper Exchequer, staffed by officials known as barons of the exchequer: these wereusually four in number led by a chief baron. Although not initially lawyers, their

11


responsibility for decisions involving debtors’ liability led them to acquire this expertise.Although mediaeval kings and their councils were constantly on the move from placeto place — a pattern of behaviour imposed as much by the need to provision such alarge number of people as by any governmental imperative — the Exchequer remainedfairly static. This immobility was a result of the great inconvenience of transportinglarge quantities of money in specie. The Exchequer from the 11th century was usuallysettled in the king’s palace of Westminster. As a result it sometimes happened thatlegal decisions which might have come before the king and his council had he beenpresent were determined by the Barons of the Exchequer who can therefore be regardedas the first fixed specialised tribunal of the common law. But the importance of theExchequer in ordinary (non-revenue) matters should not be overestimated for theperiod 1100-1500. The primary responsibilities of the court revolved around thosewho owed the Crown money.

Later, from the 16th century, at a time when patterns of litigation in the common lawwere rapidly changing for other reasons, plaintiffs were to be found exploiting theadvantages of suing in the Exchequer on a variety of claims. Because the defendant in the Exchequer was supposedly a debtor to the Crown, Exchequer process tended to favour private plaintiffs who were, by the same supposition, acting in the royalinterest. Exchequer writs to summon defendants could, for example, issue into areasof the country, like the palatinates of Durham and Chester, normally exempt fromcommon-law process.

At some point — the details remain obscure but are canvassed by Wurzel (1939) — itwas discovered that a private plaintiff could start proceedings against any defendantby the simple expedient of declaring himself a royal debtor. Those (genuine) royaldebtors unable to pay the king because they were owed money by others had longbeen able to use the Exchequer as a court to litigate their claims as a favourableoutcome to their case would directly benefit the crown. Now it was possible to pretendfictitiously to claim that one was the less (quominus in Latin) able to pay the kingyour dues and so begin proceedings against anyone in the Exchequer.

The increasing importance of the issues being decided by the barons of the exchequerled to a change in their status from mere financial experts into fully recognised judgesand, by the end of the 16th century, they obtained a position of equality with theirbrethren in the other common-law courts.

Question

Why should anyone choose to pretend to be in debt to the king?

The Common BenchReading


3rd edition [ISBN 0 406 53101 0] 20-24, 45-6.

Hastings, M. The Court of Common Pleas. (Ithaca: Cornell University Press, 1947).

The court which is better known as the Court of Common Pleas was in the mediaevalperiod more often known as the Common Bench. The establishment of a secondspecialist tribunal at Westminster (beside the Exchequer) occurred during the 13thcentury. It is no longer believed that the provision of Magna Carta requiring commonpleas to be held in a fixed place is the origin of the court: rather the meaning is thatthe hearing of a particular case should be established in some certain place rather thanbeing left to occur wherever the king’s itinerary should take him. Nevertheless thefinal fixing of Westminster as a place for the regular meetings of the king’s judges

12


must have been of considerable benefit to parties and their legal advisers. (In practicethe courts still tended to move on occasion — for example to York when the king wascampaigning in Scotland in the 14th century and even later to Oxford during times ofplague in London.)

During the minority of king Henry III (1216-72), between 1216-34, the governmentremained more or less settled at Westminster and this was followed by a period ofpolitical crisis amounting to civil war between the king and his barons. When theusual pattern of travelling government was recommenced in mid-century it appearsthat complaints were made about the uncertainties this occasioned for litigation. Bythe reign of Edward I (1272-1307), the Common Bench had become established as abody of king’s councillors expert in the law who are left behind at Westminster todetermine private disputes. From early in Edward’s reign we have the earliest lawreports in the form of so-called Year Book discussions of procedural arguments.1

It must be remembered that the bulk of private litigation at this period was still beingconducted in local courts, both communal and seigniorial. The major exception wasland law where the common law had made considerable inroads into the old feudaljurisdictions. It followed that the bulk of the business heard in the newly emergedCourt of Common Bench was connected with real property. The dominance of landedproperty in the mediaeval economy ensured the pre-eminence of the Common Benchamong common-law courts down to the end of the 16th century.2 Thereafter theBench’s monopoly on real property was effectively challenged by the Chanceryjurisdiction over trusts. The changes in jurisdiction which occurred during the 16thcentury gave the Bench a larger jurisdiction equal to that of the other common-lawcourts down until the period of major reorganisation of the courts in 1873-5.

Question

When and why did the Common Bench (Common Pleas) become established in a

fixed place?

The King’s BenchReading


3rd edition [ISBN 0 406 53101 0] 49-56.

Blatcher, M. The Court of King’s Bench 1450-1550. (London: Athlone Press, 1978)

[ISBN 0 485 134128].


(University of Wales Press, 1975) [ISBN 0 7083 0588 1].

Milsom, S.F.C. ‘Not Doing is No Trespass’ [1954] Cambridge Law Journal 105 =

Milsom, S.F.C. Studies in the History of the Common Law. (London and

Ronceverte: Hambledon Press, 1985) [ISBN 0 907628 61 3] 91.


(London: Butterworths, 1981) 2nd edition [ISBN 0 406 62503 4 (limp)] 52-58,

62-67.

The King’s Bench consisted of those legally skilled councillors who remained withthe king on his travels around the kingdom. In John’s reign (1199-1216), the king wasstill to be found sitting in judgment together with his councillors — coram rege, in thepresence of the king — and it is not always possible to distinguish it from a judicialmeeting of the king’s council. By the middle of the 14th century, the King’s Benchhad become as specialised a body as the Common Bench and was most frequently tobe found established in Westminster with the other two common-law courts.

1 See Chapter 5 ‘The year books’on page 26 of this subject guide.

2 See Hastings (1947) for a detailed survey.

13


As the name implies, the King’s Bench was concerned with matters of royal interest.This included what we would now call criminal law but also, and much more fruitfully,the whole area of responsibility covered by the writs of trespass. Trespass meanswrongdoing and trespasses in the legal sense were wrongs which occasioned harm tothe king’s interest — personal, governmental or fiscal. In the absence of a police force,mediaeval government depended upon private assistance to pursue wrongdoers andthe King’s Bench was content to take jurisdiction over complaints brought byindividuals who complained that an assault on their person had caused them harm.The guilty defendant would be made to pay compensation to the victim but wouldalso be imprisoned by the king until he paid a fine. Harding (1975) has argued thatthe genesis of this type of proceeding lay in suits brought against royal officials forexceeding their functions and as such this is also an early example of administrativelaw. The royal courts were not anxious to take over all private business from the localcourts and some allegation of royal interest was essential to attract the attention of thecourt. Claims that the defendant had acted with force of arms against the king’s peace(vi et armis contra pacem Domini regis) became standard and perhaps increasinglyfictitious, by the mid-14th century. Milsom (1958) traced this development in a seminalseries of articles.

Established by this means as a major vehicle for civil liability, trespass became evenmore important during the revolution in procedure which occurred during the 16thcentury as a result of which the King’s Bench became the most important of thecentral courts in the early modern period and the only one whose name survived thejudicial reorganisation at the end of the 19th century.

Question

What was the main role of the court which remained with the king?

The itinerant justicesReading


3rd edition [ISBN 0 406 53101 0] 16-20, 24-26.

We have already noted the striking centralisation of the common-law system. Althoughthis resulted from the regular establishment of the king’s courts in Westminster by the14th century, the pattern was not then as marked as it has become since. Throughoutthe mediaeval period justices would be sent out periodically on journeys around thecountry. In each county they would for a period oust the jurisdiction of the local ShireCourt and provide a forum for all to receive the king’s justice. From at least the timeof Henry I (1100-1135), the purpose of these visitations was administrative and fiscalas well as judicial. The justices would enquire into the way the county had beenadministered since the last visitation and impose heavy penalties for failures. Theywould also receive private complaints from individuals as a part of this process as, intheir presence, the ordinary business of the Shire Court was suspended. Henry IIconsolidated the process in two legislative enactments or Assizes, of Clarendon (1166)and Northampton (1176), after which the practice of commissioning justices in itinere(on a journey or eyre) was continued every 10 or so years until the early 14th century.They are extensive reports, of the Year Book type, of the civil litigation of these eyres.

The eyre system eventually collapsed under its own weight as more and more taskswere heaped upon the commissioners as the business of government became morecomplex. The last eyres were held in the 1350s but the system had been moribund for50 years. The job of bringing justice to the counties was taken over by a series of

more specialised commissioners empowered to deal with the more important judicialbusiness left over after the eyres had ceased. The Assizes were hearings of claimsrelating to disputes over the possession of land and, as the most regular of thecommissions issued, gave the name to the whole system. Criminal matters were dealtwith under commissions of gaol delivery by virtue of which judges visitedperiodically to clear the gaols of those accused of crime. Most civil business was triedby virtue of an act of parliament in which it was ordered that juries in civil cases wereto go to give their verdicts in person at Westminster unless before (nisi prius) theappointed day a travelling justice appeared who could take the verdict and report itback to Westminster.

Question

What devices were used to combat the centralisation of the common law?

The Court of ChanceryReading


3rd edition [ISBN 0 406 53101 0] Chapter 6.

Guy, J.A. The Cardinal’s Court. (Hassocks: Harvester Press, 1977)

[ISBN 0 85527 829 3].

Guy, J.A. The Public Career of Sir Thomas More. (Brighton: Harvester Press, 1980)

[ISBN 0 85527 963 X].


(London: Butterworths, 1981) 2nd edition [ISBN 0 406 62503 4 (limp)] Chapter 4.

Just as there was a part of the royal administration devoted to revenue, the Exchequer,so there was one devoted to issuing the king’s written instructions, the Chancery. The importance of writing in royal administration was a feature borrowed from theAnglo-Saxon kingdom together with the word for the instrument itself, the writ. Aswe shall see later on, the writ became central to the operation of the common-lawscheme of remedies.

The Chancery was not primarily a judicial body. Its head, the lord chancellor, wasalways before the 16th century a bishop and it was staffed largely by clerics. In themediaeval period the close connection between education and the church ensured agood career in administration to those who started out on the path to priesthood. Justas the Exchequer barons exercised jurisdiction over difficulties arising out of theadministration of the financial business of the Exchequer, so the chancellor decideddifficulties arising in the Chancery. One of the ways in which individuals could getredress of grievances was by asking the king, through his Chancery, to order therecalcitrant person to do or cease doing something. Such an order was issued in theform of a writ. A problem arose if the complaint was against a royal official. It wasnot thought possible for the king to issue a writ directed against himself. Such aproblem was resolved, if at all, by the chancellor. Such judicial matters were recordedin the Chancery records in the normal way in Latin; this jurisdiction is thereforereferred to as the Latin jurisdiction.

Sometimes a complaint would be brought into the Chancery that could not be resolvedby the mere issue of a writ. The plaintiff might claim that the defendant was sopowerful a local figure that he could safely evade the consequences of a royal writ.More subtly he might be able to subvert the law procedures by suborning the jury. Orperhaps the plaintiff might simply say that he was too poor to use the normal courtprocedures commenced by a writ out of the Chancery. If an issue of principle were

14


involved the chancellor could always, as a regular member of the king’s council, laysuch a matter before them for decision. Such a step might result in legislative oradministrative change. But the chancellor could act on his own initiative.

We are poorly informed about the details of his early activity because he was regardedas acting informally and no Latin record was kept. We have examples of the writtenpetitions from plaintiffs from the mid-15th century but no details of the decisions ofchancellors before the end of that century (and then only indirectly). It is a common,but hazardous, assumption that the frequency of types of complaint indicates theextent of effective Chancery response. These petitions are in English and hence thisactivity is given the name English jurisdiction. The most important substantiveissues addressed by the chancellor in his English jurisdiction were the use or trust andmatters relating to the enforcement of contracts.

By the 16th century, the chancellor had developed a jurisdiction almost as extensiveas that of the courts of common law and had acquired the office of a full-time judgeto add to his continued administrative and legislative roles. The first Common lawyer(and the first layman) to be appointed chancellor was Sir Thomas More (1529-32) whoconsolidated the developments which had occurred under his predecessor CardinalWolsey.3 After suffering a setback in the later 16th century and surviving near abolitionduring the Commonwealth (1649-60), the Chancery revived its jurisdiction over trustsat the Restoration. Chancery thus came to develop in the modern period a distinctiveand separate body of legal remedies under the name of Equity which has survived theforcible merger of the jurisdictions under the Judicature Acts 1873-5.

Question

How did the king’s writing office become a court of law?

Prerogative and conciliar courtsReading



Squibb, G.D. Doctors Commons. (Oxford: Oxford University Press, 1977)

[ISBN 0 19 825339 7].

Squibb, G.D. The Court of Chivalry. (Oxford: Oxford University Press, 1959).

Wiswall, F. The Development of Admiralty Jurisdiction and Practice.

(Cambridge: Cambridge University Press, 1971) [ISBN 0 521 07751 6].

In a sense all royal jurisdiction proceeds from the prerogative but in the constitutionalcrises of the 17th century the idea was conceived that the long-established common-lawcourts were legitimate in a way that those more recent-seeming courts politicallydependent upon and supportive of the monarchy were not. The Court of Chanceryitself narrowly missed abolition as the Long Parliament voted in 1649 that it shouldgo only when it had completed its unfinished business, which it failed to do by thedate of the Restoration in 1660!

AdmiraltyThe Court of Admiralty was recognised by statute in the 14th century. It applied alocalised version of the admiralty rules common to courts all over western Europe. Its procedures were those of the civil law, relying more on written than oral evidenceand operating without a jury.4 Its practitioners were not barristers but graduates incivil (Roman) law from the universities who were based in Doctors Commons.5 Itsreliance upon non-native traditions led to its jurisdiction being attacked in the courseof the 16th century. Its major jurisdiction was that over Prize, or lawful seizure in

15


3 See the studies of Guy (1977 and 1980).

4 Wiswall (1971) Chapter 1 is a useful survey.

5 On which see Squibb (1977).

times of war, for which the common-law courts had no equivalent and Admiraltyflourished during the major Anglo-French conflicts of the 18th and early 19thcenturies. The distinctive character of Admiralty practice began to be lost after 1857when it was opened to Common lawyers and it was merged into the High Court in thereforms of 1873-5. A less significant but parallel jurisdiction existed in respect ofmilitary affairs: the Court of the Marshal or Court of Chivalry.6

Conciliar courtsWe have already seen how the common-law courts sprang from the King’s Court orCouncil (curia regis). The establishment of particular tribunals did not prevent thecouncil’s continuing to exercise a jurisdiction over matters of state, though there was agrowing tendency to resist conciliar interference with the regular courts — a principlethat is closely associated with the rule of law. In the closing years of the 15th centurya combination of more efficient government and increasing dissatisfaction with therigid practices of the old common-law courts suggested change along the lines ofconciliar jurisdiction with improved procedures of the type being developed in otherEuropean countries. Wolsey, as chancellor under Henry VIII, built on these tendenciesand developed out of the old Council a number of separate tribunals to meet a rangeof needs. A new criminal jurisdiction was erected in the shape of the Court of StarChamber, a body which had statutory roots in the previous century but now took onan enlarged role. A Court of Poor Men’s Requests was established to meet the long-expressed needs of those too poor to sue at common law. Although successful for a time, these tribunals suffered from association with the prerogative powers of theCrown when these came in question in the early 17th century: they had alreadyincurred the displeasure of the Common lawyers led by Lord Chief Justice Coke fortheir interference with traditional common-law jurisdictions. In the meantime thecommon-law courts had undergone procedural transformation during the 16th centurywith the result that it was possible for the Commonwealth government to suppress theconciliar jurisdictions without seriously impeding justice. At the Restoration noattempt was made to restore the Council’s jurisdiction within England save inecclesiastical matters. The Privy Council thus acquired its jurisdiction in the king’soverseas territories which it retains.

Question

What reasons were there for the emergence of a new set of conciliar tribunals in the

16th century?

Appellate tribunalsReading




(London: Butterworths, 1981) 2nd edition [ISBN 0 406 62503 4 (limp)] 55-8, 65-6,

350-1.

Against the final judgment at common law there was no appeal. This finality, which hadits origins in the ordeal, was applied also to the inscrutable verdict of jury. However itwas recognised that human judgment, unlike Divine, might be deliberately wrong. Theearliest appeal was by challenge to the jury: a jury of attaint of 24 would be summonedto try the original 12. If the first jury was found to be at fault its verdict was set asideand the members of the jury punished with forfeiture of all their movable goods andimprisonment.

16


6 See Squibb (1959), a workwritten in the light of a

misguided attempt to revive thecourt. Compare Manchester

Corporation v Manchester Palaceof Varieties [1955] P.133.

17


Writ of errorIf a mistake were recorded in the official record of proceedings then this could formthe basis for an application for revision by a higher court. If successful the earlierproceedings were annulled. Because this was essentially concerned with correctingrecords its availability in cases of defect of justice might seem capricious by modernstandards: it was frequently possible to attack some insubstantial error, like themisnaming of a party, where it would not be possible to appeal the verdict directly.Where a party thought that a ruling at a trial might prejudice him without finding a place in the official record he could request the judge to seal a bill of exceptionswhich could then form the basis for a subsequent proceedings in error.

Originally errors from the Common Bench were corrected in the King’s Bench, thosefrom Exchequer in a special Court of Exchequer Chamber while those from King’sBench went to Parliament. In 1585 a statutory Court of Exchequer Chamber wasestablished to hear error from each of the three common-law courts with a varyingmembership drawn from the other two courts.

Informal appealsIn civil cases the practice of taking jury verdicts before Assize commissioners at nisiprius7 for subsequent reporting to the appropriate court at Westminster enabled thepresiding judge, if he chose, or the parties if he did not, to refer the verdict andjudgment to the scrutiny of all the judges of the court in which the case had beenstarted and then, if there remained doubts, the matter could be laid before a meetingof all the common-law judges in an informal and unofficial body called (confusingly!)the Court of Exchequer Chamber. One of the leading contract cases at the end of the16th century, Slade’s Case (1597-1602) B&M 420, was argued five times by leadingcounsel in this way without any final decision being reached.

Appeals in the modern sense of a rehearing could occur under the old system only whena retrial was ordered. This practice became more common towards the end of the 17thcentury when the rules of court were amended to permit motions for new trials.

Appeals in ChanceryThe only judge in Chancery was the chancellor. He could be asked to review his owndecrees and so could his successor in office. At the beginning of the 19th centurythere was an increase in the number of first instance judges in Chancery (a vice-chancellor was appointed in 1813 and the chancellor’s assistant, the master of therolls, was given a fuller role). As a consequence, a regular system of appeal wasestablished in 1851, staffed by appointed lord justices of appeal. Because of the natureof rehearings in the Chancery, this was not so much a new method as a newmechanism.

The House of LordsIn 1675, it was established that the House of Lords had a final jurisdiction in error.However, no attempt was made to ensure that the Lords contained any judicialexpertise until the late 19th century. To ensure a measure of conformity, it became thecustom to invite the judges to advise the Lords. In the early 19th century, an increasein business made this impracticable and the House had to rely on a succession ofserving and former lord chancellors for expertise, though the principle that onlyjudicially qualified peers should vote in appeals was not firmly settled until mid-century. The abolition of the jurisdiction in the 1873-5 legislation in favour of aproperly constituted Court of Appeal staffed by lords justices on the chancery modelwas frustrated when a change of government prior to the change taking effectpermitted the Conservatives to introduce a measure in 1876 to retain the Lords as anultimate appeal chamber.

7 See ‘The intinerant justices’ onpage 13.

Questions

What substitutes were there for appeals in the early common law?

When and why did a proper appeal system develop?

Learning outcomesBy the end of this chapter and the recommended reading, you should be able to:

• outline the differences between the three courts of common law and account for

their origins

• explain the relationship between the central courts and the itinerant justices

• explain the role of the Court of Chancery

• give reasons for the failure of the conciliar courts to replace the old common-law

courts in the 16th and 17th centuries

• give an account of the methods of appealing decisions.

Questions1. Account for the existence of three central courts of common law.

Name and describe each of the three courts: Common Bench, King’s Bench and

Exchequer. Explain particular original functions of each. Show how, under

pressure from litigants, each acquired a general jurisdiction.

2. What was the origin of Chancery as a court of justice?

Explain the role of the chancellor in issuing writs and responsibility for system of

justice. The chancellor — a prominent member of government and

member/chairman of the King’s Council. Chancellor approached by those unable

to sue at common law. Ad hoc remedies become more general from 1390s.

Difficulties over lack of Chancery records before the 16th century.

3. What methods for challenging the verdict of a jury existed before 1850?

Attaint of the jury — a clumsy device. Errors in the record — of limited utility

even when the record was supplemented by a bill of exceptions. Motions to set

aside jury verdicts in favour of judgment for defendant or a new trial from late

17th century. Informal proceedings in Exchequer Chamber. Modern appeals

borrowed from Chancery practice only in 1873-5 legislation.

18


19

Chapter 4: Mercantile, seigniorial and ecclesiastical courts

Chapter 4

Mercantile, seigniorial andecclesiastical courtsEssential reading


3rd edition [ISBN 0 406 53101 0] 26-33 and Chapter 8.

Further readingDuncan, G.I.O. The High Court of Delegates.

(Cambridge: Cambridge University Press, 1971) [ISBN 0521 08024 X].

Helmholz, R. Canon Law and the Law of England.

(London: Hambledon Press, 1989) [ISBN 0 907628 931] Chapter 1.

Robinson, O.F., Fergus, T.D. and Gordon, W.M. European Legal History.

(London: Butterworths, 1994) 2nd edition [ISBN 0 406 02976 8].

IntroductionThere were a number of different jurisdictions in England other than that of thecommon law. We have already noticed the Court of Admiralty which, though a royalcourt, administered a body of rules which were in essence similar to those found insimilar jurisdictions all over maritime Europe. Most non-common-law jurisdictionswere influenced to a greater or lesser extent by the revived Roman law studied in theUniversities: this affected both the substance and the procedures of the law. Althoughits very different procedural system rendered the common law largely immune to thereception of Roman law, there was a higher degree of influence than is commonlyacknowledged.

This chapter covers the mercantile courts in towns, the seigniorial feudal courts andthe church courts.

Mercantile courtsThe courts of mercantile communities living in towns and frequently trading overlong distances were obliged to accommodate a wider range of practices than those ofthe more stable agricultural communities served by the local communal Courts ofHundred and Shire. The regular markets and occasional fairs demanded ad hoc tribunalsof their own which could dispense acceptable and immediate justice between thoseonly temporarily resident. The mercantile customs thus generated are sometimesdignified with the Latin term lex mercatoria which suggests greater uniformity than in fact was the case. In truth, there was no common system among these diversejurisdictions; they were chiefly noted for their difference from royal and feudaljurisdictions.1 Various borough courts survived into the modern period but theirprocedures and substance were slowly assimilated to the common law so that, by thetime of their eventual abolition (by statute in 1971), the Tolzey Court of Bristol andthe Liverpool Court of Passage — to name but two — were common-law courts in allbut name.

1 See for a slightly differentperspective the account in

Robinson et al. (1994) 90-105.

20


Question

How did the merchants’ courts relate to other jurisdictions?

Seigniorial courtsThe royal court was in part in its origins just a feudal court among many others whichlords kept to administer the business of their fiefs. In the king’s case the victory atHastings made the whole of England his fief. Beneath him his tenants-in-chief heldSeigniorial Courts, courts of a lord, for their tenants. Each feudal court had its owncustoms and the customs of the king’s feudal court formed the basis for the commonlaw of real property. The interference of the Common Bench in the rights of feudaltenants ensured diverse local feudal customs rarely survived, though some like thegavelkind of Kentish custom entailing managed to establish itself against the prevailingcommon law of primogeniture. After the common law established a monopoly overfreehold tenures, feudal jurisdictions remained at manorial level and dealt with unfree,copyhold, tenures (until these were abolished in 1925).

Question

What happened to the king’s feudal jurisdiction over his tenants?

Ecclesiastical courtsThe ecclesiastical or church courts (in mediaeval times they were known as courtsChristian) have an extensive history of their own with a large literature. You need onlyan outline knowledge of them for the purposes of this subject. The Christian churchexercised a jurisdiction over its own members from early times and, after theestablishment of Christianity as the state religion in the later Roman Empire, acquireda universal jurisdiction over all in personal matters. Chief among these were marriageand sexual matters, legitimacy of children and inheritance of movable goods. Thebishop of each diocese held a court, the consistory, which regulated such matters inaccordance with local and universal church custom. Where an issue transcended thelocal diocese, where for example someone left property in more than one place, thearchbishop or metropolitan had jurisdiction. The Archbishop of Canterbury’smetropolitan court was the Court of Arches, so called because it held its sessions inthe church of St Mary of the Arches in London. Beyond the metropolitan court wasthe universal jurisdiction of the pope in Rome. Each level in this hierarchy could beappealed to from a lower court. At the time of the Reformation an Act of Parliamentwas passed, forbidding further appeals to Rome, and a court was established underroyal authority, the Court of Delegates, to hear such appeals in future.2 In 1857 themarriage (and divorce) and testamentary jurisdictions were secularised.

Roman lawBoth procedure and substantive law of the church, called canon law, owed much toRoman law together with papal and other church legislation. It was studied in theuniversities together with Roman law and graduates in law customarily took degreesin both laws (i.e. Roman and canon law), a practice which has left its mark in thehabitual first law degree (LLB) of English universities.

Question

What sorts of business were dealt with in the church courts?

2 For details see Duncan (1971).

21

Chapter 4: Mercantile, seigniorial and ecclesiastical courts


• distinguish the common law from other legal systems in England

• outline the features of the church court system.

Question‘I can’t help thinking that the law of the King’s courts is only part of the law…’

(Maitland) What other jurisdictions existed in England in the period before 1857?

Outline mercantile, ecclesiastical and feudal jurisdictions. Account for disappearance

of mercantile courts along with other local courts after 17th century. Feudal courts

lose their main business to common-law courts after 13th century (but finally cease

only in 1925 with abolition of copyhold tenure3). Ecclesiastical jurisdiction over

matrimonial and succession to movables abolished in 1857.

3 See Chapter 6 ‘Unfree tenures’on page 35 of this subject guide.


22

Notes

23

Chapter 5: Procedure

Chapter 5

ProcedureEssential reading


3rd edition [ISBN 0 406 53101 0] 49-51, Chapters 4, 5 and pages 578-582.



Further readingGroot, R.D. ‘The Early 13th-Century Criminal Jury’ in Cockburn, J.S. and Green, V.

Twelve Men Good and True. (Princeton: Princeton University Press, 1988)

[ISBN 0691 05511 4] 3.


(University of Wales Press, 1975) [ISBN 0 7083 0588 1] 65.

Van Caenegem, R.C. The Birth of the Common Law. (Cambridge: Cambridge

University Press, 1990) 2nd edition [ISBN 0 521 20097 0] Chapters 2 and 3.

Sources

Brand, P. The Earliest English Law Reports. volumes 111 and 112.

(London: Selden Society, 1995-6).

Van Caenegem, R.C. Royal Writs from the Conquest to Glanvill. Volume 77.

(London: Selden Society, 1959).

IntroductionProcedure, how to bring a lawsuit and conduct it in court, forms an appendix to mostmodern study of the law. An alternative name, adjective law (coined by JeremyBentham), indicates its subordinate status. First we determine what the law is, then weset about applying it. But things were different in the early common law. Althoughthere were unsophisticated ideas about what was right and what was wrong, therewere no detailed rules about liability. The actual decision was in the hands of theDeity (in the shape of the ordeal) or the conscience of the party (as in wager of law)or the jury. The lawyer’s job, and all his professional skill, was concerned with gettinga case properly pleaded to a decision. Once made there was little scope, as we haveseen, for challenging the jury’s verdict.1 Procedure was therefore central to the oldcommon law. The details of the substantive law as we now know them emergedslowly in the light of changes in procedure, particularly the development of methodsof appealing verdicts in the late 17th century.2

This chapter deals with writs and bills as means of initiating litigation and the way inwhich these procedures were later abused to expand jurisdiction. It relates the way inwhich cases were pleaded and tried, especially by jury. Finally it treats the problem ofevidence as well as execution of judgment.

1 See above Chapter 3 ‘Appellatetribunals’ on page 16 of this

subject guide.

2 See Chapter 3 above.

24


WritsA suit at common law was typically started by obtaining a writ from the Chancery.3

For each type of action there was an appropriate distinct writ and it was essential touse the correct one. You could not, for example, start a case for breach of contract (forwhich a writ of covenant was correct) by bringing a writ of right (for claimingownership of land). For each type of writ there was an appropriate set of steps to betaken to summon the defendant to court and a way of pleading the case once bothparties appeared. The writ process then dominated the pattern of the lawsuit.

From command to litigationThe writ was in origin a way of expressing a royal command. When the Normansbegan to issue writs like their Anglo-Saxon predecessors they put them into Latin. Themost common form of early Norman writ starts with the word Praecipe which means‘Command!’ and is usually addressed to a sheriff who is commanded to see thatsomeone does something. Writs were an integral part of the Norman and Angevinsystem of administration. Someone who could get the king’s attention could oftenpersuade him to issue a praecipe writ directing that something was to be done to theadvantage of himself. Chancery would issue some writs as a matter of course onpayment of a fee (these were known as writs de cursu, of course). An unscrupulouslitigant could try to get an advantage over an opponent in this way. If the opponentfailed to obey the king’s command he could find himself in serious trouble. On theother hand, it seemed a hardship that cases should be decided on the ex parte statementof one of the parties in the Chancery. If a defendant failed to obey the writ he wouldbe summoned before the royal court to explain himself: if he succeeded in persuadingthe court that it was a mistake and that the plaintiff should never have had the writissued then he would be discharged. If, on the other hand, the court was satisfied thatit was an appropriate case for a royal writ they would not only find for the plaintiffbut order the defendant to prison for having defied the royal command.4 Later writs(including the trespass writs) were specifically formulated to allow the defendant tocome into court to show cause (ostensurus quaere) why he should not obey.

Writs of courseWith the emergence in the 13th century of the specialised Court of Common Bench,the writ procedures were consolidated. The clerks in Chancery produced a register ofthose writs which could be obtained by plaintiffs. Although the King’s Council and itslater offshoot, the King’s Bench, had an inherent jurisdiction, this was not consideredto extend to the ordinary royal court for party and party suits, the Common Bench.There proceedings had to be begun by obtaining a writ out of the Chancery directingthe case to be heard by the Court of Common Bench ‘before our justices at Westminster’.

Question

How did writs become judicialised?

BillsThere was a less formal alternative to the writ issued from Chancery. The justices whotravelled around the country on eyre were willing to entertain complaints from anysource.5 Litigants could place before the court an informal note (billa) usually writtenin the vernacular — at this period still Norman-French. The King’s Council and laterthe King’s Bench also accepted this method of starting litigation. It was neveravailable in the Common Bench which took the view that it could only hear casesspecially sent to it by Chancery writ. There were exceptions to this which applied inall the royal courts: a court would allow one of its own officers to sue in the court byinformal bill; moreover, it would allow anyone to sue informally someone already

3 See Chapter 3 ‘The Court ofChancery’ on page 14 of this

subject guide.

4 Van Caenegem (1959 and 1990)has studied the way in which

these early writs came to formthe basis for litigation.

5 See Chapter 3 ‘Itinerantjustices’ on page 13 of this

subject guide; Harding (1975).

25


appearing in the court as a defendant. Both these ‘privileged bill’ exceptions werejustified on the grounds of expediency as no court wanted to have its officers tied upin litigation in other courts or its own proceedings interrupted while defendants wentto appear elsewhere.

As we have seen, bills were also the way in which, later in the 15th century, plaintiffsbrought their complaints in Chancery if they were unable or unwilling to sue out awrit at common law.6

Bills of MiddlesexIn the 16th century, there was a significant development in the use of bills. The King’sBench, as we have seen, was willing to entertain bills from plaintiffs, subject only tothe defendant’s being in the same county as the court was sitting (usually Middlesexwhere Westminster Hall was situated). The reason for this restriction was that thecourt would have to summon the defendant to appear through the sheriff of the countywhere he lived: the sheriff of Middlesex (or other county where the court happened tobe) was in attendance in court and could be directed immediately to summon adefendant. If he lived in another county, the proper way of summoning him wasthrough Chancery and so the point of the informal bill procedure was lost.

It sometimes happened, however, that a defendant, usually resident in Middlesex, couldnot be found by the sheriff sent to summon him. When the sheriff reported to the courtthat he could not find him (non est inventus) the court would ask whether it was knownwhere he was: if it was suspected that he was hiding somewhere else the Court ofKing’s Bench would itself issue a writ addressed to the sheriff of that county statingthat the defendant was thought to lurk and run about (latitat et discurrit) in his county.If successfully found the defendant would be arrested — the claim of trespass allegedthat he had acted against the king’s peace7 — and brought to appear in King’s Bench.

Once in King’s Bench the plaintiff could proceed on his original bill and also add anyother complaint against the defendant as a result of the privileged bill procedure. As a consequence of procedural changes in the early 16th century, it came to be seen aspreferable to pursue certain claims in King’s Bench which should properly have goneto the Common Bench. A plaintiff would commence a bill action against a defendanteven though he were not resident in Middlesex, get the court to issue a latitat and,once he was in custody (or admitted to bail), drop the initial complaint and commenceproceedings on a privileged bill stating the true basis of complaint. So effective wasthis apparently cumbersome process that the King’s Bench came to be the most activeof the two main common-law courts in the course of the 16th century, a position itnever thereafter lost. The Common Bench was driven in the 17th century to try toconstruct an informal procedure of its own by allowing plaintiffs to commencelitigation by a writ which they then dropped in favour of a privileged bill.

Questions

Why were some proceedings started informally by bill?

What reasons were there for using fictitious bills of Middlesex?

Forms of actionCounting

Each action began in court with a formal statement of claim, the count. Originally a high degree of formality was associated with making this claim and the earliestcourt lawyers, called serjeant-counters or serjeants (the word means servant), wereemployed in order to avoid the consequences of error. The serjeant would speak andonly if he did so correctly would the plaintiff acknowledge the words as his own.

6 See Chapter 3 ‘Court ofChancery’ on page 14 of this

subject guide.

7 See Chapters 3 ‘Court of King’sBench’ on page 1122 [[PPlleeaassee cchheecckk

tthhaatt tthhiiss iiss tthhee ccoorrrreecctt ppaaggeerreeffeerreennccee aass tthhee ttiittllee sseeeemmss

ddiiffffeerreenntt]]; Chapter 7 ‘Trespassand case’ on page 41 of this

subject guide.

26


PleadingOnce the plaintiff’s claim had been made it was for the defendant to make his plea.He could either plead generally, as not guilty or nothing owing (nil debet), or hecould plead specially, of which the most important example is a plea of confessionand avoidance — yes, I did it but not so as to be liable. If the defendant’s plea was notsufficient to create an issue — a matter which the parties were agreed would decidethe case one way or another — then the plaintiff would have in his turn to reply, andso the pleading would pass from side to side until an issue was reached. At this pointthe court would refer the case to proof — usually the decision of a jury. Because thejury was a body of neighbours who were supposed to know the answer there was nofurther room for argument and the lawyers lost interest in the matter.

The year booksBetween 1279 and the middle of the 16th century the reporting of the pleadings wasthe most important form of common-law literature. They were probably originallycompiled to assist in educating serjeants and other barristers in their craft but becamean invaluable repository of learning about pleading. They rarely reveal the result of a case, breaking off at the point where the parties reach an issue. Although frequentlyappearing arcane and serendipitous, the various rules of pleading were once designedfor a practical purpose, namely the exclusion of uncertainty and doubt as to the outcomeof the trial. Much year book material remains in manuscript but there is an old 17thcentury Vulgate or ‘Black letter’ edition and modern editions in the Rolls Series (yearbooks of Edward I and III), various Selden Society volumes (mainly eyres and theyear books of Edward II omitted from the Vulgate edition) and the Ames Society(Richard II). The earliest surviving year books have recently been published by Brand.8

Question

What was the function of the year books?

Methods of proofEarly methods of proof were either irrational like the ordeal or unilateral like oath-helping or wager of law (also known as compurgation). When the king was a party hehad at his disposal the sworn inquest or jury, a body of locals who were supposed toknow the facts and were sworn to tell the truth. The origins of the jury are problematic.Some examples are found in pre-Conquest England, especially in the northern areasof the Danelaw formerly ruled by Scandinavians. The Normans themselves were onceof Norse origin but there is little evidence of their using the jury in Normandy before1066. The old view, maintained by the German historian Brunner, that the practicederives from French (Carolingian) times, has recently been subject to criticism. Onbalance it seems best to conclude that the Angevin rulers of England greatly developedan old idea found in various contemporary cultures. Criminals were detected usingjuries under the provisions of the Assize of Clarendon 1166, a procedure akin to thelater Grand Jury. The actual proof of guilt or trial continued to be by ordeal. In civilcases, the reform introduced in 1179 by the Assize of Windsor permitted defendantsin land law cases to opt for trial by a jury (the Grand Assize) in place of the formertrial by battle. Furthermore the same justices empowered by Clarendon to seek outcriminals were responsible for hearing claims of recent dispossession of land — thepossessory Assizes. They were to put the issue to a body of locals, the Petty Assize,for decision.

The most striking and eventually most important of these changes in trial processoccurred in the 1220s. The old trial by ordeal was abolished in 1216 by the church.Previously those pointed out or indicted by the presenting juries were put to proof byordeal. Now this could no longer be done. As an emergency measure the government

8 See Selden Society, volumes111 and 112.

27


ordered that those accused of serious crime should be imprisoned: a potentially lethalstep in an age where prisoners (who were normally held only on remand) wereresponsible for their own sustenance. In the sessions held by itinerant justices in theearly 1220s, the judges experimented with a variety of devices for enabling accusedpersons to put themselves upon a jury to decide their guilt.9 Because it remained anexceptional measure, a defendant could always refuse jury in which case he could notbe tried. A later legislative provision that such persons should be closely locked up(prison forte et dure) led to the horrendous practice of pressing to death in the peineforte et dure. Until the end of the 18th century, some chose this death in order to avoiddying convicted felons.

Gradually the jury evolved from a body of locals who knew into an impartial group oflaymen before whom evidence had to be led. This process was more clearly articulatedin civil cases. where the jury became the dominant method of proof after the increasein the scope of trespass actions. As quasi-criminal suit trial in trespass actions wasalways by jury.

The developed common law knew two other modes of proof besides the jury: wagerof law and trial by battle. Battle had been used both in private criminal accusations(appeals) and in the most solemn claims to real property. The Grand Assize from1179 took the place of civil battle, where the engagement could be fought bychampions. Battle remained the proof for criminal appeals, especially that variety bywhich an already accused person could hope to escape the gallows by convictingothers in combat. This process was called approving. Other private appeals wereusually taken over as prosecutions on the king’s behalf. Battle was not formallyabolished, however, until 1819 after a startled defendant had been challenged to battleby the relative of the victim after a crown prosecution had failed.10

Wager of law (compurgation) continued in active use until the end of the 17th century:it was finally abolished in 1833. Its association with certain types of action, notablydebt, led to attempts by plaintiffs to avoid these in favour of forms which led to trialby jury. This forms a part of the story of the rise of trespass and case.11

The emergence of trial by jury as the main form of proof at common law was notwithout its difficulties. The logic of wager of law rested on the premise that the partieswere particularly knowledgeable about the circumstances of the case and, if one wereto swear to his lack of liability and be able to produce others to swear with them, thissufficed to dispose of the matter. In small communities and among groups likemerchants who were reliant upon one another’s word, such a system might work well.In the enlarged and heterogeneous world of Westminster Hall, it made little sense. Butwas the jury, the only alternative, much better? The jury might not be as biassed as thecompurgators but it was wide open to influence both for good and ill. In, say, a caseof physical assault the neighbours might well know enough to determine the matter.But in those involving private transactions or loans, the jury would be at a loss unlessthey were told what had happened and this would frequently be a matter of dispute.

Question

What were the origins of the jury?

Witnesses and evidenceThere were no rules governing the admissibility of evidence in trials on circuit in themediaeval common law. Much would have depended upon the decision of thepresiding judge. By the time the rules came to be consolidated in the first treatises onprocedure, the most stringent rule excluded the evidence of any interested in theresult, most obviously the plaintiff and defendant. Again the logic was impeccable:

9 See Groot (1988) for a detailedstudy of this important

development.

10 See Ashford v Thornton (1818)1 B&Ald 405.

11 See Chapter 7 ‘Trespass andcase’ on page 41 of this subject

guide.

28


who else would be more likely to swear untruths and mislead the jury? But the effectwas to condemn many cases to nonsuit. These limitations were relaxed in the mid-19thcentury as regards civil suits but their effect was still to be observed into our own timein the survival of the rule, the so-called ‘right to silence’ recently abolished, that nodefendant in a criminal case need give evidence and no inference can be drawn from a failure to do so.

Execution of judgmentsThe choice of writ determined not only how the plaintiff had to set out his claim andthe sorts of defences which a defendant could make, but also the procedures forsummoning the defendant and for dealing with matters incidental to the trial, the mesneprocess. The writ also determined what steps could be taken to compel a reluctantdefendant to comply with a judgment. Technical and trivial though these mattersappear to be, they were often crucial to a plaintiff’s substantial success. It was becausethe royal courts were generally more effective against locally powerful rivals that the common law expanded at the expense of local tribunals. Within the range of thecommon law’s remedies some were seen to be more expeditious and effective thanothers and these slowly pushed out the less attractive alternatives. No action was moreefficient than the action of trespass, for its allegation of a wrong done against theking’s peace brought with it the immediate arrest of the defendant and his appearancein court, the supposed royal interest continuing into the process of execution. Togetherwith the fact that it was triable by jury this explains in large measure the success ofthe trespassory actions whose lineal descendants now dominate the remedies of thecommon law.

Review of verdicts and judgmentsThis topic is covered in Chapter 3 in ‘Appellate tribunals’.12


• explain the procedures for commencing an action at common law in various

courts

• account for trial by jury.

QuestionWhat was the effect upon the common law of the adoption of trial by jury?

Outline earlier methods of proof. Jury subject to fallible human judgement.

Development of pleading to narrow the issue to be put to the jury. Legal rulings on

permissible pleas create rules of law. Later, from the 16th century,13 methods of

challenging verdicts led to judges ruling on substantive questions of law.

12 See page 16 of this subjectguide.

13 See Chapter 3 ‘Appellatetribunals’ on page 16 of this

subject guide.

29

Chapter 6: Land law

Chapter 6

Land lawEssential reading


3rd edition [ISBN 0 406 53101 0] Chapter 13-17.



Chapters 5-8.

Simpson, A.W.B. A History of the Land Law. (Oxford: Oxford University Press, 1986)

[ISBN 0 19 825536 5 (limp)] Chapters 1-4, 7 and 8.

Further reading Baker, J.H. ‘The Use upon a Use in Equity’’ (1977) 93 Law Quarterly Review 33.

Barton, J. ‘The Origin of the Fee Simple’ (1976) 92 Law Quarterly Review 108.

Barton, J. ‘The Statute of Uses and Trusts of Freehold’ (1966) 82 Law Quarterly

Review 215.

Bordwell, P. ‘Ejectment takes over’ (1970) 55 Iowa Law Review 1089.

Brand, P. ‘Formedon in the remainder before De Donis’ (1975) 10 Irish Jurist 318

also in Brand, P. The Making of the Common Law. (London: Hambledon, 1992)

[ISBN 1852850701] 227.

Brand, P. ‘The Origins of English Land Law: Milsom and after’ in Brand, Making

(1992) 203-225.

Hudson, J. Land, Law and Lordship. (Oxford: Oxford University Press, 1994)

[ISBN 0 19 820437 X].

Jones, N. ‘Jane Tyrrel’s Case (1557) and the Use upon a Use’ (1993) 13 Journal of

Legal History 75.

Sutherland, D.W. The Assize of Novel Disseisin. (Oxford: Clarendon Press, 1973)

[ISBN 0198224109].

Thorne, S.E. ‘English Feudalism and Estates in Land’ [1959] Cambridge Law

Journal 193 also in Thorne, S.E.. Essays in English Legal History.

(London: Hambledon, 1985) [ISBN 0907628567] 1.

Watkin, T.G. ‘Quia Emptores and the Entail’ (1991) 59 Tijdschrift voor

Rechtsgeschiednis 353.

Yale, D.E.C. ‘The Revival of Equitable Estates in the 17th Century’ [1957]

Cambridge Law Journal 72.

IntroductionThe history of English land law is central to the history of the common law. Land lawissues were the first private suits to engage the interest of the king’s court, the court ofa feudal overlord as well as of an anointed ruler. According to Milsom, the shift ofland law claims from feudal courts to the king’s courts transformed the nature of theseclaims from personal claims between lord and man to real property claims betweenequals. The extent of this transformation has been challenged, by Hudson (1994)among others. There is a useful survey of the various views by Brand in ‘Origins’(1992). The transformation of feudal holdings into common-law estates was marredby the extraordinary steps which created the entail. Generations of land lawyers were

30


presented with an instrument designed alike to further and frustrate the wishes ofsettlors. These ‘legal’ estates were glossed by the existence of ‘equitable’ interests inuse which were created initially to enable settlors to do the impossible, like leavinglanded property by will, or the improper, like avoiding feudal dues. Here the attemptby a greedy executive to deprive landowners of these advantages led in turn to themiraculous revival of the most distinctive contribution of the common law to theuniversal stock of legal ideas, the trust.

This chapter deals with the medieval feudal system, the emergence of the commonlaw of estates, the development of the term of years (leaseholds) and the survival ofunfree tenures. We consider uses, the precursors of trusts, and their abolition andrevival together with the elaboration of perpetuities and settlements.

Feudalism and tenuresFeudalism can be defined for this purpose as the exchange of land for services. Thelord who has the land permits it to be occupied by the tenant in return for the tenant’sproviding military or other assistance to the lord. The land provided the economicsupport for the tenant, and would usually have unfree tenants (serfs) attached to itwho would exploit the land agriculturally. The lord in turn would hold his land of a higher lord, eventually of the king, whose victory at Hastings had made him theoreticalholder of all the land in England. In this context it was not possible to speak of oneowing land to the exclusion of others: lord and tenant both had an interest in the land,the one as lord and other as tenant. To manage the feudal relationship a lord wouldhold a court of which the suitors (and judges) were his feudal tenants. If the tenantbroke the agreement with the lord the lord could, acting through his court, seize theland back and give it out to another, more loyal, tenant. If there were a dispute amongthe tenants the court could determine it: trial was by battle.

As well as the fixed services owed by the feudal tenant, often expressed as theprovision of so many armed knights, he was liable to incidents. These included thepayment of a sum of money on the occasion of the knighting of the lord’s eldest sonor marriage of his eldest daughter and the responsibility for ransoming the lord if hewere captured in battle. More importantly a payment, called relief, was owed when atenant was succeeded by his heir: if the heir were under 21 the lord received back theland in wardship until he came of age. While in wardship an heir could be marriedoff at the lord’s choice. In addition the land would revert to the lord by escheat, if thetenant died without an heir or committed a serious offence (a felony). If the tenantcommitted treason the land would go all the way back to the king by forfeiture.

SubinfeudationA feudal tenant had always been able to sublet, subinfeudate, to his own tenants, solong as this did not affect his relationship with his lord. In this way the classic feudal‘pyramid’ was created with the king, as overlord, at the top, the lowest tenants at thebottom and in the middle those who were both tenants and lords at the same time,called mesne (middle) lords. When a tenant subinfeudated he lost immediate controlof the land to the subtenants. This in turn would affect his chief lord if, for example,the mesne tenant was in wardship. The chief lord would not have control of the landas a result of his tenant’s being in wardship, but only immediate lordship over thesubtenant. Furthermore if the mesne tenant had subinfeudated for a lower level ofservice (say a lower rent payment) than he himself owed to the chief lord, the chieflord would suffer a real loss. His direct tenant was in wardship and so did not pay therent but this wardship only gave him the right to collect a lesser sum from thesubtenant.

31

Chapter 6: Land law

In 1256 the king forbade his immediate tenants, the tenants-in-chief, to subinfeudate.They were allowed to pass their interest on, to substitute, to someone who wouldtake over all their feudal responsibilities to the king, but only with the king’spermission.1 In 1290 a statute, Quia emptores terrarum (B&M 9), forbade all furthersubinfeudation but permitted unlimited substitution.

The fee simpleOriginally a lord would provide the tenant with land in exchange for his services on apersonal basis. On the death of the tenant the arrangement would be renegotiated withhis successor. By the end of the 11th century tenants acquired a right to pass the landon to their heirs on payment of a fixed sum as relief. In his Coronation Charter of1100, Henry I promised his tenants this right and it is likely that the feudal courts ofmesne (middle) lords acted likewise. The tenant’s position was finally secured by thenew possessory remedy of mort d’ancestor created in 1166 as heirs could now sue inthe king’s courts to obtain possession of land held by their predecessor.

What had started as a feudal arrangement between individuals came to be the basisfor permanent land holding in the family of the tenant. This fullest interest in a fief orfee was later called a fee simple. Who was heir was fixed by custom. In militarytenures the rule was primogeniture — preference to the eldest son, then other sonsseverally, then daughters inheriting jointly.

AlienationThe principle of free alienation of land was a natural consequence of the right toinherit land. Someone who could pass land on to his heirs without the lord’s consent,could ensure that he passed a good title to a stranger which his heirs had to guaranteeor warrant. Before 1290 this was done by subinfeudation and the heir would eventuallybecome lord of the alienee and so obliged by the feudal compact to guarantee thesubtenant’s holding. After 1290 the alienation had to be by substitution and the alienorwould undertake to guarantee the title, an obligation which passed to his heir.

From tenures to estatesThe effect of shifting jurisdiction over land holding from the feudal into the royalcourt had the effect of transforming the tenant’s interest in the land into a form ofownership. In the feudal court litigation addressed the nature of the contract betweenlord and tenant. In the king’s court the debate was about the better right to possessand hold the land. Some of this work was done by the possessory Assizes establishedin 11662 and some by the shifting of land law litigation about the right to hold theland from the feudal courts, where trial was by battle, to the king’s court where it wasby the Grand Assize.3 By the middle of the 13th century when the jurisdiction of theking’s courts over land law was well established, a third type of remedy, the writ ofentry, was introduced.

Questions

Contrast the services and incidents of tenure.

What was the difference between subinfeudation and alienation?

Estates for life, conditional fees and the entailTenancy for life

Even after the establishment of the right to inherit and alienate the fee simple itremained possible to grant lesser interests. A lord might deliberately create a lifeinterest in land for a particular tenant. More commonly a life interest might arise byoperation of law such as the interest of a widow in a share of her husband’s landsafter his death (her dower) or that of a widower whose late wife had given birth to

1 See the Ordinance of 1256 in B&M 8.

2 See section on fee simple(above) and Chapter 5 ‘Methods

of proof’ on page 26 of thissubject guide.

3 See Chapter 5 ‘Methods of proof’ on page 26 of this

subject guide.

32


a child (quaintly called tenancy by the curtesy of England). Although a life tenantcould alienate his interest during his lifetime it naturally came to an end with hisdeath, making it a poor investment.

Fee tailTenants who wished to provide for members of their families other than the eldest soncould transfer land to a younger son. If they did so by subinfeudation this could causeproblems if the elder son died in the father’s lifetime. For the younger son would nowbe both tenant and potential lord of the same holding. In practice the two interestswould merge but a question arose whether the younger son had to pay relief as he hadcome to the land by purchase, not inheritance. (The term purchase was used for anyalienation irrespective of whether money had exchanged hands.) The Statute ofMarlborough 1267 (B&M 8) made provisions for the lord not losing relief in this case.

More often a tenant would make a family arrangement falling short of granting afeudal interest. This was commonly done on the occasion of a son’s marriage and theidea was that if he was successful in starting a family then eventually, on thesuccession of the third heir, the grant would mature into a fee simple. Until then noservices were due from the son’s family and there was no tenurial relationship. Suchgrants were said to be in frank (or free) marriage: because the fee was not a full oneit was said to be cut down, taillée, or a fee tail. After the statute Quia Emptores 1290it was no longer possible for a fee tail to mature into subinfeudation. As a result, andprobably unintentionally, the fee tail became permanently limited to the descendantsof the first grantee. The later manner of creating a fee tail was to make a grant tosomeone and the heirs of his body: that is the property was to go only to his descendantsand not to collaterals.

Already in the middle of the 13th century complaints were made that holders of feestail were trying to alienate them as if they were fees simple. Complaints came fromdonors, who saw their family plans threatened, and from descendants who sawthemselves deprived of their expectations. A special remedy, formedon, existed toprotect the form of the gift (forma doni) and then in 1285 a statute, De donisconditionalibus (B&M 48), was passed to regulate these grants. Interpretation of thestatute varied over the ensuing half-century but eventually in Belyng’s Case (1312)B&M 52, the courts concluded that the statute had made such gifts unbreakable orunbarrable. Coupled with the effect of Quia Emptores this ensured a struggle betweenthose wishing to maintain such lands within a family and those, usually the currenttenant, who wanted to be able to rearrange things.4

Reversions and remaindersIf a tenant granted away a fee simple interest after 1290, he ceased to have any furtherinterest in the land. If, however, he granted a lesser interest, a life tenancy or a fee tail,he continued to hold the fee simple interest, although it was not in possession. If theheirs of the body died out then the land would revert to the grantor’s heirs, usually the descendants of the eldest son, in fee simple. This interest, what remained after the fee tail, could therefore in its turn be granted out and such an interest was called a remainder. Indeed, in complex settlements, there might be a succession of grants offee tail in remainder (for example, to each of successive younger sons) ending with a remainder or reversion in fee simple. The fee simple had always to be somewhere:settlements which neglected this requirement failed.

Barring the entailAlthough the availability of the fee tail enabled settlors to make arrangements forvarious members of the family despite the rules of primogeniture the fact that they wereunbreakable imposed severe restrictions on subsequent generations. For example, feestail were commonly granted so as to descend only to male children, a fact which Mrs

4 See Watkin (1991) for a full survey.

33

Chapter 6: Land law

Bennett could never understand (see Jane Austen, Pride and Prejudice). Muchingenuity was expended on methods of freeing the fee simple interest by barring theclaims of all those entitled to succeed to the estate.

1. It was possible, though difficult, so to arrange matters that the warranty or guaranteeof a grant in fee simple made by the current tenant in tail would descend to hisheir-in-tail and prevent their ever claiming the land back. To do this the tenant hadto ensure either that the heirs-in-tail received other land of equivalent value (assetsdescended) or that the warranty was collateral. These restrictions limited theeffectiveness of the method.

2. In the late 15th century a better method was devised. It also relied upon thewarranty but in a different way. The tenant-in-tail arranged to be sued for the landby the purchaser and then vouched a man-of-straw. The process of voucher wassupposed to bring into court the tenant’s warrantor so that he could assist in thedefence of the action. Here the man-of-straw proceeded to default and so lose theaction with the result that the purchaser-demandant acquired the fee simpleinterest by judgement. The heirs-in-tail were left with a remedy against the man-of-straw, for he had failed in his warranty, but this was only of value if hesubsequently acquired lands which he was careful not to do. This abusive procedure,known as a common recovery, was nevertheless upheld by the courts with theresult that the heirs-in-tail, and eventually the remainderman also, were barred.

Crucially the device of the common recovery depended upon there being a tenant-in-tail in possession who could be sued. Settlors could guard against this possibility bymaking the initial grant a life tenancy with remainder in fee tail to the eldest son. Theentail could only be barred by the life tenant’s son when he inherited, a possibilitywhich could be forestalled if the life tenant could persuade his son to join him inresettling the estate. Life tenant and tenant-in-tail could together suffer a commonrecovery and resettle the land upon the father for life, remainder to the son for life,remainder in fee tail to the son’s son. The whole process could be repeated in the nextgeneration. A son who hesitated could be induced by the offer of an income out of theestate pending his inheritance.

Questions

What was left after the life grant of a fee? How might it be disposed?

Why should one wish to bar an entail?

The term of yearsAn alternative to granting an interest in land for a life or longer was to grant it for a period of years. During the 13th century leases were commonly of short periods of10 years or so. They were used for agricultural or commercial purposes, for securingloans or managing land during an agricultural depression. For the former purpose themortgage lease was devised in which the land was leased to the creditor in return fora loan which was repayable at the end of the lease. In the husbandry lease the lesseepaid the lessor rent and recouped himself by exploiting the land. Before 1290, it waspossible to create a new tenancy in fee simple subject to payment of rent (such grantscalled ‘feu farm’ persist in Scotland). After Quia Emptores this was no longer possiblein England and the husbandry lease became the only way of granting land in returnfor rent.

Leaseholders’ remediesThe importance of the lease as a form of investment in land depended upon theremedies available to protect the lessee’s interest. It was early on decided that thelessee, unlike the tenant for life, could not use the real remedies of right, entry andnovel disseisin. The lessee had to rely upon personal actions.

Against the lessor he had a contractual action, the writ of covenant. During the early13th century the king’s courts would grant specific performance of the term to a lesseedeprived of his interest by his lessor. Against a stranger not claiming through thelessor the lessee was initially in a weak position. He could claim in writ of trespass toland (called quare ejecit) but this only produced money damages. By the early 14thcentury,5 the term could be recovered in quare ejecit against anyone claiming throughthe lessor. Not until the end of the next centur did it become possible to recover theterm in any event. This form of trespass was called ejectio firmae.

Advantages of trespassThe establishment of ejectio firmae meant that the leaseholder had a better action forprotecting his interest than a freeholder. Trespass actions were speedier than any ofthe real actions, even novel disseisin.7 There were other advantages: trial was by juryat nisi prius (with the possibility of argument back at Westminster) rather than byAssize in the country; non-appearance in trespass led to judgment for the plaintiffrather than a postponement; in trespass only one issue could be pleaded.

EjectmentThe result was the elaboration of devices for enabling freeholders to use the leaseholder’strespassory remedy in ejectment. In a genuine case the lessee was only entitled torecover the term if his original lessor had been entitled to grant it (i.e. had in factowned the land). It followed that a successful claim in ejectment demonstrated thetitle of the lessee’s grantor. If A and B dispute the fee simple of Blackacre, A makes a lease to C and gets B to eject him. C sues B in ejectment. If C wins this proves A’stitle: if he loses, B’s.

There were difficulties in generalising this remedy. In particular it was necessary forthe grantee (A) to go on to the land to make a valid lease: this might be difficult if Bwere actually in occupation and not willing to co-operate. If A forced an entry thiscreated further difficulties. Eventually in the mid-17th century, the courts began tocollude with plaintiffs. No actual lease or entry needed to take place. Instead theplaintiff wrote to the occupier and informed him that one John Doe had ejectedRichard Roe from the property and that Roe was suing Doe in ejectment. If theoccupier wished to defend his title he would have to come into court and would onlybe admitted to defend if he accepted that the ejectment had taken place. In allowingthis charade the courts were accepting that there was a need for a more efficientremedy than the old real actions. The real actions were abolished by statute in thecourse of the 19th century leaving the common law with an essentially possessoryremedy for land disputes.8

Questions

What purposes were served by the term of years?

By what means might one recover a term of years?

Unfree tenuresUntil the 16th century, the common-law courts did not recognise unfree or villeintenures. These remained subject to the customary law of each seigniorial court.9

During the 16th century, however, the unfree tenant who leased his property becameable to use the leaseholder’s remedy of Ejectment in the common-law courts.

34


5 See Anon (1317) B&M 177.6 See Note (1495) B&M 179.

7 See Sutherland (1973) for anaccount of the way in which this

action ceased to be a quickremedy for recent dispossession.

8 Bordwell (1970) remains themost detailed account.

9 See Chapter 4 ‘Seignorial courts’ on page 20

of this subject guide.

35

Chapter 6: Land law

Thereafter, rights to these copyholds, as they were called, were regulated by the localfeudal courts until their assimilation to freeholds in 1925, but they were litigated atcommon law.

UsesFrom the 13th century we have evidence of freeholders granting fee simple interestsaway to intermediaries, ancestors of the modern trustee, for a variety of purposes. If a tenant in fee simple wished to resettle his estate, say to himself for life withremainders over, he could not change it by simple declaration. He had to grant Blackacreto an intermediary (a feoffee to uses) who would regrant it on the terms he dictated(these are the uses).

More importantly, feoffment to uses could be used to effect post mortem (afterdeath) alienations of land which were not otherwise possible at common law. Thefeoffor would grant the land to feoffees to uses for regrant to those he named after hisdeath. The beneficiary was the cestui que use, the person to whose use the feoffmentwas made. In making such an arrangement, say in favour of younger son, the feoffeemight intentionally or otherwise manage to avoid the payment of feudal incidents ofrelief, wardship and marriage, for the beneficiary acquired the land by purchase fromthe feoffee to uses and not directly by inheritance.

Additional reasons for putting lands into use included:

• making grants to bodies unwilling or unable to hold land (the traditional exampleis the Franciscan friars)

• making grants to cheat creditors.

Problems with usesThe use was not recognised at common law. Initially this was because the courtscould not see a way of combining an interest in the cestui together with recognition ofa fee simple in the feoffee. Cestuis were unprotected against unscrupulous feoffeesuntil the chancellor developed his remedies at the very end of the 14th century. By theend of the 15th century, the chancellor had a flourishing jurisdiction which thecommon-law courts recognised was assisted rather than diminished by their upholdingthe interests of the feoffee.

The evasion of feudal incidents was of concern to lords, above all to the king. TheStatute of Marlborough 1267 outlawing attempts to avoid payment of relief was notheld to apply to uses. Only limited efforts were made over the following three centuriesto protect feudal revenues. The problem became acute toward the end of the 15thcentury as improved remedies for cestuis in the Chancery encouraged more and morelandowners to put their lands into use.

The Statute of Uses 1536By the early 16th century it could be claimed that the greater part of land in Englandwas held in use. Attempts to maintain the royal feudal revenue were occasionallymade. In 1532 a bill was introduced into Parliament which would have requiredlandowners to retain one-third of their land in fee so that it would pass by inheritanceand attract feudal dues but it failed to be enacted. Shortly afterwards the governmentbrought what seems to have been a test case against the estate of Lord Dacre (1535)B&M 105 and, by bullying the judges, got a judgment declaring that uses declared ina will of lands were invalid. The effect was potentially catastrophic for currentlandowners holding under uses and there was no difficulty in passing an act which,though it effectively abolished uses for the future, confirmed all those settlementswhich had been made prior to Dacre’s Case. The Statute of Uses (B&M 112)

36


provided that, where a feoffment to uses took place, the legal interest was to passimmediately to the cestui with the consequence that the beneficiary became liable forthe feudal dues.

Consequences of the StatuteThe Statute of Uses had the effect of preventing tenants of land willing their propertyaway in a testament. This aroused great resentment and eventually, in the Statute ofWills 1540 (B&M 115), a power to will lands at common law was granted, on termsthat required tenants to pass a proportion of their property on to their heirs whichwould attract the feudal dues. This statutory power was free of formalities.

One anticipated effect of the statute was the possibility of secret conveyancing. Atcommon law this had been done by going on to the land. A use by contrast could becreated by word of mouth or in writing. The statute would execute such a use leavingthe cestui with the legal estate without any publicity. Further, before the Statute ofUses, a mere agreement to sell land would pass a use to the purchaser, which wouldnow be executed by the statute. The Statute of Enrolments 1536 (B&M 115) waspassed requiring such transactions to be recorded in a public register. Had this policybeen effective we would have had a land registration system 400 years ago.

However it was not foreseen that the Statute of Uses would be held to apply to uses ofleaseholds (i.e. leasehold interests by the action of ejectment).10 Granting a use of theleasehold interest transferred a legal leasehold under the Statute. The subsequentrelease of the freehold interest to the sitting tenant could be performed by deedwithout livery of seisin. Neither of these steps was registrable under the Statute ofEnrolments. In this way, by lease and release, conveyancers achieved secrecy.

Questions

Why did people put lands into use?

What was the king’s interest in uses?

What were the unforeseen consequences of the Statute of Uses?

Trust and future executory interestsNot all uses were executed by the Statute of Uses. Among the exceptions were activeuses where the feoffees had been entrusted with management of the property. Thesearrangements survived and, eventually, the old term trust was applied to distinguishthem from uses executed by the Statute.

There remained a need to secure property on trust where for some reason the owner infee simple wished to divest himself of the title but retain a beneficial interest. A caseof this sort, with considerable political interest, arose in Bartie v Herenden (1560)B&M 121.11 Sometimes uncertainties arose as to the parties’ intentions in the light ofthe Statute as in, for example:

• Jane Tyrrel’s Case (1557) 2 Dyer 155; B&M 120, where a bargain for the sale ofa fee simple raising a use was made subject to a repugnant express use.12

Eventually the courts recognised that a grant to A to the use of B to the use of Cwould create a trust for C with B as trustee. The Statute would execute the first butnot the second use:

• Sambach v Dalston (1635) Tothill 188; B&M 126.

In the first cases enforcement took the form of requiring a conveyance of the title toC. No question of evading feudal dues arose.

10 See ‘Ejectment’ on page xx ofthis subject guide.

11 On which see Baker (1977).

12 For a detailed accountcorrecting the textbooks see

Jones (1993).

37

Chapter 6: Land law

So long as the Crown was interested in its feudal revenue the trust could have only alimited existence. After the abolition of tenure in chivalry in 1660 the fiscal factor wassharply reduced and the establishment of the modern concept of a trust is due to thework of Lord Nottingham, Lord Chancellor 1673-82.13

Question

How and why did uses revive as trusts?

Perpetuities and settlementsEarly settlements

Settlors were always anxious to try to tie up the succession to their land. Earlysettlements were based upon the life tenant (who could only alienate for his lifetime)and the tenant in tail (restrained by De Donis).14 There were uncertainties aboutsecuring the entail, which might be barred.15 Some settlors attempted to secure theirsettlements by reserving a right of reentry to the donor’s heirs in case the donee’sheirs alienated. This was called a clause of perpetuity and it was held that it would notprevent barring by common recovery. Attempts to restrain tenants in tail by condition(e.g. ‘but if A attempt to alienate then to B’) were held bad at the end of the 14thcentury, though a variant form expressed as a limitation (‘but if A attempt to alienatethen his estate to determine as if he were dead without issue’) was only disapprovedin 1599.16 In the early 17th century, it was said that any such restraint on alienationwas necessarily void.17

Under these rules a change in an existing settlement could only be postponed by ageneration by granting a life estate with remainder in tail. When the remaindermanentered he would be able to bar the entail and resettle. Sometimes mistakes led todifficulty. A settlement ‘to A for life remainder to B’s eldest son in tail’ where B hadas yet no children could be regarded as bad because of impossibility.18 The concernwas to know who had the seisin of the land and to avoid the possibility of an abeyanceof seisin: a situation where no one appeared to own it. Later the courts preferred towait to see whether at the time of A’s death, B — seised of the land — had a son ableto take it.19

Executory interestsBefore the Statute of Uses there were no rules restricting the settlement of uses inland because the fee simple remained with the feoffees. After the Statute could suchgifts be executed as legal fees? It was only slowly realised that to do so was toabandon the old rules of perpetuity altogether. On the other hand it was plainlyimpossible to subject the new interests (called executory interests) to the full rigourof the common-law rules.

• In Chudleigh’s Case (1595) 1 Co Rep 113; B&M 150 it was held that, where anexecutory interest depended upon an earlier estate, it was destroyed with thepremature termination of that estate.

• Finally, in Purefoy v Rogers (1671) 2 Wm Saunders 380; B&M 85, the rule wasdevised that, if an interest could possibly exist as a legal interest, it was subject tothe old rules but otherwise it existed free from restriction as an equitable interest.

Equitable interests in trustThe revival of the trust after the Restoration led to a reformulation of the criterion forthe survival of executory interests. In the Duke of Norfolk’s Case (1682) 3 Chan Cas 1;B&M 170 it was held that to be good a contingent interest must be going to vest (if atall) in the lifetime of a person alive at the time of the settlement. This rule permitted

13 See Yale (1957).

14 See above.15 See ‘Barring the entail’ onpage xxxx of this subject guide.

16 See Corbett’s Case 1 Co.Rep.77; B&M 158.

17 See Mary Portington’s Case(1614) 10 Co. Rep.

18 See Blackett’s Case (1410)B&M 69.

19 See Colthirst v Bejushin(1550) Plowden 21; B&M 78.

38


arrangements which were not regarded as taking effect at too remote a period of time.The developed rule against perpetuities added first 21 years and then nine months tothe limit of a life in being.20

Questions

Why did settlors want to tie up their land? How might they do so?

What was the effect of the Statute of Uses upon the settlement of uses?


• describe the feudal land system and account for the development of the common

law of estates

• explain the origins of the fee tail

• show how ejectment came to replace the old land law actions

• account for the development of the use, its effective abolition and its revival as

the trust

• explain the effect of the Statute of Uses upon settlements.

Questions1. Account for the common-law doctrine of estates.

Outline the feudal system of land-holding. List remedies in the king’s courts to

protect tenant’s interests — novel disseisin, the Grand Assize and writs of entry.

Show how in the royal court the ‘horizontal’ relationship between demandant and

tenant outweighed the ‘vertical’ relationship between lord and man. The greatest

interest becomes a fee simple: show how lesser interests (fee tail, life tenancy)

are carved out of it.

2. What considerations led mediaeval landowners to put their lands into use?

Reasons include avoiding primogeniture and generally allowing wills of land and

also the avoidance of feudal dues. Explain common-law system of inheritance

and the various feudal dues (relief, wardship). Show how informal arrangements

come to be protected in the Chancery in 15th century.

3. What were the causes and what the consequences, of the Statute of Uses?

Rehearse reasons for putting land into use and the effect upon feudal revenue:

stress special royal interest. Show early attempts to maintain royal revenue —

Marlborough 1267. Effect of protection offered in the Chancery. Lord Dacre’s

Case and need to preserve existing settlements. Statutory mechanism of executing

the use. Result: no more livery of seisin — enrolments (evaded by lease and

release). No more wills of land — Statute of Wills. No more passive uses — until

abolition of Chivalrous Tenures (1660) allows development of the use upon a use

= trust.

20 See Yale (1957).

39

Chapter 7: Contract and tort

Chapter 7

Contract and tortEssential reading


3rd edition [ISBN 0 406 53101 0] Chapters 18-19, 21-22.



Chapters 10-13.

Further readingBaker, J.H. ‘New Light on Slade’s Case’ [1971] 29 Cambridge Law Journal 51 and

213 = Baker, J.H. The legal profession and the common law: historical essays.

(Hambledon Press, 1986) [ISBN 0907628621] 393.

Baker, J.H. ‘Origins of the “Doctrine” of Consideration’ in Arnold, M.S. et al. (ed.)

On the Laws and Customs of England: Essays in honor of S.E.Thorne.

(Harvard: Harvard University Press, 1981) [ISBN 0 8078 1434 2] 336 = Baker

The legal profession. 367.

Barbour, W.T. A History of Contract in Early English Equity.

(Oxford: Oxford University Press, 1914).

Beckerman, J.S. ‘The Forty Shilling Jurisdictional Limit’ in Jenkins, D. Legal History

Studies 1972. (University of Wales Press, 1975) [ISBN 0 7083 0588 1] 110.

Helmholz, R. ‘Assumpsit and fidei laesio’ (1976) Law Quarterly Review 406 =

Helmholz, R. Canon Law and the Law of England (London: Hambledon, 1987)

[ISBN 0 907628 931] 263.

Ibbetson, D.J. ‘16th-Century Contract Law: Slade’s Case in Context’ (1984) 4

Oxford Journal of Legal Studies 295.

Ibbetson, D.J. ‘Assumpsit and debt in the early 16th century’ [1982] Cambridge Law

Journal 142.

Ibbetson, D.J. ‘Consideration and the theory of contract in the 16th-century

common law’ in Barton, J.L. (ed.) Towards a General Law of Contract.

(Berlin: Duncker & Humblot, 1990) [ISBN 3 428 06809 2] 67.

Milsom, S.F.C. ‘Not Doing is No Trespass’ [1954] Cambridge Law Journal 105

= Milsom, Studies, 91.

Milsom, S.F.C. ‘Sale of Goods in the 15th century’ (1961) 77 Law Quarterly Review

257 = Milsom, S.F.C. Studies in the History of the Common Law. (London and

Ronceverte: Hambledon Press, 1985) [ISBN 0 907628 61 3] 105.

Milsom, S.F.C. ‘Trespass from Henry III to Edward III’ (1958) 74 Law Quarterly

Review 195, 407 and 561 = Milsom, Studies, 1-90.

Palmer, R.C. English Law in the Age of the Black Death.

(Chapel Hill: University of North Carolina Press, 1993) [ISBN 0 8078 2099 7].

Prichard, M. ‘Trespass, Case and the Rule in Williams v Holland’ [1964]


Prichard, M. Scott v Shepherd (1773) and the Emergence of the Tort of Negligence.

Selden Society Lecture 1973 (London: Selden Society, 1976).

40


Simpson, A.W.B. ‘The Introduction of the Action on the Case for Conversion’ (1959)

75 Law Quarterly Review 364 = Simpson, A.W.B. Legal Theory and Legal

History. (London and Ronceverte: Hambledon Press, 1987) [ISBN 0 907628 83 4]

111.

Simpson, A.W.B. A History of the Common Law of Contract.

(Oxford: Oxford University Press, 1975) [ISBN 019 825327 3].

IntroductionA single thread runs through the details of the history of contract and tort. It is the riseof the action of trespass and its close relation, the action on the case, until they oustedthe older actions of contract entirely. This development parallels that by which trespassactions (in the shape of Ejectment) came to dominate the land law.

This chapter deals first with the old actions of debt, detinue and covenant and thenproceeds to examine the way in which the action of trespass spawned the action onthe case. We trace the rise of assumpsit to replace the old contractual actions andtouch upon the varieties of tortious actions on the case. After dealing with the doctrineof consideration the chapter we conclude this chapter with an account of the rise ofthe modern law of negligence.

Debt, detinue and covenantReading





Milsom, S.F.C. Studies in the History of the Common Law.

(London and Ronceverte: Hambledon Press, 1985) [ISBN 0 907628 61 3] 108.


(Oxford: Oxford University Press, 1975) [ISBN 019 825327 3] 9-199.

Simpson, A.W.B. Legal Theory and Legal History.


In the first two centuries after the Conquest in 1066, the common-law courts were notconcerned with the enforcement of private agreements which were a matter for localjurisdiction. Debts were however seen as a matter of royal interest, partly because ofthe king’s interest in the solvency of his subjects and partly because debt was asubject of dispute between the secular courts championed by the king’s courts and theecclesiastical jurisdiction. An action of debt commenced by a writ requiring thedefendant to pay the sum claimed by the plaintiff was available in the king’s courts. If the action were contested by the defendant the matters of fact in question wereresolved by putting the plaintiff to proof of his claim. This proof consisted of eitherproducing written evidence of the debt in the form of a deed (debt sur obligation) orswearing to the truth of the claim and backing this oath with the oaths of 12 oath-helpers(a procedure known as waging one’s law). Unless the defendant could impugn thedeed as a forgery (non est factum — not my deed), these proofs were conclusiveagainst him.

Debt and detinueTwinned with the action of debt was an action of detinue claiming that the defendantdetained goods belonging to the plaintiff. Debt lay for money, detinue for specificgoods; the question of fungible goods other than money caused a difficulty. Theappropriate writ for fungible goods was held to be detinue. Nevertheless, the liabilities

41


of the borrower of all fungible goods (including money) were sharply differentiatedfrom those of the borrower of specific goods. For example, the latter was excused byaccidental destruction of the goods in his possession while the borrower of eithermoney or grain must return an equivalent amount in any event. Fungible goods thereforewere placed in a hybrid category of debt in the detinet; the rules of debt appliedalthough the pleadings used the forms for detinue. What this episode illustrates is thedegree to which the early common law was a matter of procedural forms rather thansubstantive rules: if the question of liability came before the court it would be decidedby the inscrutable wager of law and not by rules applied by lawyers.

Detinue lay primarily against those to whom the plaintiff had committed goods(bailments) or those who could be said to under an obligation to deliver as a result ofreceiving quid pro quo. It came to be extended to strangers, however, firstly by aprocedure of physically tracing the descent of the property from hand to hand (thedevenit ad manus count) and then by a pleading device by which the allegation thatthe defendant had found the goods was taken by the courts to be both sufficient to fixhim with liability and impossible for him to deny (the count in trover).

CovenantFrom the beginning of the 13th century, the actions of debt and detinue were joinedby the writ of covenant. Covenant means agreement and the appearance of thisremedy is a sign of the expansion of royal justice into this area. Early cases concernedagreements about land and it was only towards the end of the century that there wereindications that the royal courts would concern themselves with commercial contracts.In 1321, the royal courts effectively limited their usefulness in this field by holding1

that covenant actions in the central courts had to be supported by a deed. The purposeseems to have been to exclude those claims which would need to be supported by oralevidence which, though producible and assessable in local courts, posed problems forthe royal judges.

Disabled by the need to produce a written deed, the action of covenant does not play alarge role in the development of common-law remedies for agreements outside of thefield of land law. If the parties to an agreement were minded to put the terms intowriting they were more likely to make use of the conditioned bond or deed. Instead ofundertaking in writing to build a house (worth £100) for the plaintiff by 1 April, thedefendant would promise to pay £200 on 1 April if he had not built the house beforethat time. On 1 April, £200 could be claimed in an action of debt sur obligation bythe plaintiff producing the deed; the defendant could however plead fulfilment of thecondition or term in the deed and, if this was proved by evidence in the ordinary way,escape liability. The terminology of modern contract law continues to reflect thispractice, which however fell a victim to Chancery’s relieving the defendant from theneed to pay penal damages (the amount the sum fixed exceeding the actual damagessuffered by the plaintiff) from the late 17th century.

Questions

What is the difference between debt and detinue?

In what circumstances was an action of covenant appropriate?

Trespass and caseReading


3rd edition [ISBN 0 406 53101 0] 16-19, 71-75.

1 As in The Case of Hay (1321)B&M 285.

42


Beckerman, J.S. ‘The Forty Shilling Jurisdictional Limit’ in Jenkins, D. Legal History

Studies 1972. (University of Wales Press, 1975) [ISBN 0 7083 0588 1] 110.



Milsom, S.F.C. Studies in the History of the Common Law.

(London and Ronceverte: Hambledon Press, 1985) [ISBN 0 907628 61 3] 1-90.

Trespass ccoonnttrraa ppaacceemmAmong the earliest of problems to be remedied in the king’s court (curia regis2) wereviolent assaults committed in breach of the king’s peace. Why should this have beenso? What was the nature of the king’s peace in the 12th and 13th centuries? A clue isgiven by the consequences of the death of Henry III in 1272 while his son andsuccessor Edward 1 (1272-1307) was on crusade in the Holy Land. Claims of wrongfuldamage which were previously kept out of the royal courts because no plausibleassertion of breach of the king’s peace could be alleged were now admissible there:even the most violent of assaults could break neither the dead king Henry’s peace northat of his absent successor. Eventually the old pattern was re-established by the Statuteof Gloucester 1278 which directed that ordinary pleas of trespass (wrongs) were to beheld in the county courts. At about this time we become aware of a financial limitationon cases brought before the royal courts: the claim must amount to a sum of at least40 shillings. The implication is that suits worth less than this considerable sum shouldbe taken before local courts.

Fictitious extensions of trespassAt the beginning of the 14th century, there is evidence of the increasing use of fictitious(i.e. false) allegations of violent breaches of the king’s peace in order to raise in theking’s courts matters which did not properly belong there — one example is:

• Rattlesdene v Grunestone (1317) B&M 300.

Milsom has pointed to the unusually high number of claims of violent assault broughtagainst blacksmiths and veterinary surgeons, suggesting unsuccessful shoeings ortreatments of animals rather than unprovoked attacks of the sort suggested by thewords of the writ of trespass ‘with force of arms against the king’s peace’ (vi et armiscontra pacem Domini Regis).

The problem lay in the pattern of writ procedure. Chancery would only seal writs in aform which was customary and would be acceptable to the court to whom it wasdirected: new forms were viewed with suspicion as possible forgeries. There weretrespass writs which dispensed with the contra pacem allegation but they wereconsidered as particular: they lay for interference with the royal franchise of marketand for not repairing sea defences of general importance for example. The principlesunderlying these cases were applicable to other non-violent situations causing loss:such cases belonged in the local courts.

Trespass by billIn cases brought immediately before the royal courts by bill rather than by writ out ofChancery the courts proved more flexible. An early example is:

• The Humber Ferry Case (Bukton v Tounesende) (1348) B&M 358, heard by theKing’s Bench while sitting at York.3

Such suits would have come before the local courts were it not for the fact that thesewere suspended during the royal court’s visit.

Trespass on the caseFrom the late 1360s, the king’s courts began to admit claims brought by writ withoutthe contra pacem allegation. Palmer (1993) has recently argued that this was a deliberate

2 See Chapter 3 ‘Introduction’on page 9.

3 See ‘Assumpsit’ on page 43 ofthis subject guide.

43


change of policy in the Chancery, which acted on the instructions of the king’s councilas part of a governmental reaction to the plague of the Black Death (1348 onwards).One of the consequences of the high mortality in these years was a demand for labourwhich threatened to upset the existing mechanisms of control through craft guilds andlocal courts. By extending their jurisdiction, the king’s courts offered those whoemployed professional services an alternative remedy. The earliest reported case ofthis type is Waldon v Marshal (1369) B&M 359 — an example of an ‘honest’ claimagainst a vet.

For procedural reasons it was necessary to distinguish these new claims from existingones and the term action on the case came to be used to describe them. The tworemedies, trespass and case, were regarded as distinct and the expeditious process of arrest associated with the trespass writ was not extended to case. Although theprocedural difference was reduced by statute in 1504, the actions remained distinct; it was not possible to join them in one suit. Eventually this essentially artificialdistinction was to create serious problems relating to the scope of particular remedies.

Questions

Why did plaintiffs try to smuggle cases of non-violent trespass into the royal courts?

When would one bring a trespass action and when an action on the case?

AssumpsitReading



Baker, J.H. The legal profession and the common law: historical essays.


Ibbetson, D.J. ‘Assumpsit and debt in the early 16th century’ [1982] Cambridge Law

Journal 142.; [1984] 4 OJLS 295.

Milsom, S.F.C. ‘Not Doing is No Trespass’ [1954] Cambridge Law Journal 105.





The disadvantages of the old actions for enforcing agreements, outlined above4 led inthe 16th century to the development of an action based upon an allegation of trespassor wrong done to the plaintiff by the defendant’s breaking what he had undertaken(assumpsit = he undertook). Prior to this development, the common law did not havea general remedy for breach of contract. The old action of covenant required productionof a sealed deed and was in any case more appropriate for remedying cases of non-performance rather than mis-performance. The expectation was that plaintiffs wouldplead contract cases in local and mercantile courts.

From the middle of the 15th century, there are signs that plaintiffs were devising waysof bringing broken contracts for determination in the central courts: the reasons forthis can only be guessed at but would include the supposed greater efficiency andreliability of the king’s courts. The device used was to allege that the defendant hadpromised to perform and then either performed so badly or had not performed at allso that the plaintiff suffered harm wrongly in consequence. Because the harm wascaused wrongfully the appropriate remedy was the general action for indirect wrongs,trespass on the case.

4 See Chapter 7 ‘Debt, detinueand covenant’.

44


In order to succeed, plaintiffs had to overcome three separate difficulties.

1. How could a ‘tortious’ action be used to enforce a contractual situation?

2. How could a trespass action alleging wrongdoing be used in a case where thecomplaint was of non-performance?

3. How could a trespass action be used to recover a debt?

Trespass by billAn early example of the sort of argument which resolved the first problem occurs in The Humber Ferry Case (1348) B&M 358. The action was commenced by bill.5

If a writ had been sought the plaintiff would have had to categorise his claim in orderto obtain a specific writ. As it was, his complaint came straight before the court on itsfacts: the defendant had undertaken to carry the plaintiff’s mare across the Humberbut had so overloaded his ferry that it sank and the animal was lost. Counsel for thedefendant objected that, since the plaintiff was suing to enforce an agreement, heshould produce a sealed deed. This argument did not find favour with the court andeventually a jury decided in favour of the plaintiff’s claim. The particular proceduralcontext of the Humber Ferry Case limited its immediate general application, but thesame argument reappeared in 1369 in Waldon v Marshal,6 the case which firstestablished a general remedy in an action on the case for trespass. The court’s dismissalof the argument that the plaintiff’s case could only be brought in covenant ensuredthat thereafter it was possible to sue in trespass on the case for harm done even inpursuance of contract.

A remedy for non-feasance Could the same remedy be applied if the harm resulted from the defendant’s failure toperform?7 The initial answer was in the negative.

• In Watkin’s Case (1425) B&M 380, the defendant undertook to build a mill for theplaintiff but failed to do so. The plaintiff, presumably lacking a sealed deed, suedin an action on the case. Martin, J., denied that he could recover:

‘if he had made a mill which was not good but altogether badly made, then a good

writ of trespass [on the case] would lie’ but here ‘no wrong is alleged by feasance but

only a nonfeasance, which sounds only in covenant.’

Part of the difficulty lay in the philosophical oddity of holding someone liable forwrongdoing if the complaint was of inactivity. There was also the problem that therewas already a perfectly good remedy for non-fulfilment of contractual undertaking —namely the action of covenant. It was a mere technicality that most plaintiffs wouldnot be able to produce a deed to evidence the contract.

• Some relief for plaintiffs was afforded by a decision in 1442 traditionally knownas Doige’s Case (Shipton v Dogge) B&M 391. Here the defendant agreed to sellland to the plaintiff but, before delivery, conveyed it to a third party. The plaintiffsued in an action on the case and the court held that the defendant’s act inconveying the land to another was a positive act of deceit for which trespass lay.

By the end of the 15th century, opinion seems to have been hardening in favour of amore general solution to this problem. The chief justice of the King’s Bench, Fineux,was reported in 1498 to have been of the opinion that, if a carpenter agree to make ahouse and do nothing, he will be liable in trespass just as if he had done it badly —the opposite of Martin’s ruling earlier in the century. In a dissenting judgment —itself something of rarity at the period — in Orwell v Mortoft (1505) B&M 406,Frowicke, C.J.C.P., expressed a similar view. The plaintiff bought barley from thedefendant which the latter undertook to deliver. The plaintiff sued for non-delivery

5 See Chapter 5 ‘Bills’.

6 See ‘Trespass on the case’.

7 See on this questionparticularly Milsom [1954].

45


only to be told by the majority of the court that he should have sued in an action ofdebt. Frowicke stressed rather the wrong done to the plaintiff by the defendant’s deceitin promising delivery and then doing nothing.

The overlap with debtBy the beginning of the 16th century then the second difficulty of bringing trespass onthe case for nonfeasance had been overcome. But the decision in Orwell v Mortoft inthe Common Pleas revealed yet another difficulty in the path of the creation of a generalremedy for contract. The action of debt lay to recover money and other fungibles due.Unlike covenant, it was not tied to the existence of a deed; it was sufficient to showquid pro quo.8 However, the action of debt permitted trial by wager of law whichenabled a rogue debtor to escape liability if he could find 11 others prepared to swearto his non-indebtedness. Even if a plaintiff did recover in debt he would find that themeasure of damages for non-delivery was limited to the value of the goods and didnot include any consequential loss.

• In Pickering v Thoroughgood (1532) B&M 411, the Court of King’s Bench wasfaced with a plaintiff brewer who had bought £11 worth of malt from the defendantmalster, which the defendant undertook to deliver. The plaintiff sued for non-delivery in trespass on the case claiming not only the value of the malt but alsodamages for loss of profit on the beer he would otherwise have been able to sell.The court allowed the action on the basis that the promise to deliver was a separateundertaking from the existing obligation in debt to hand over the malt and for thewrongful failure to perform the promise the defendant was liable in trespass.

Contrast between the courts This decision opened up a division between the Court of Common Pleas, which hadjurisdiction in actions of debt and maintained the view that one could not recover intrespass what was already claimable in an action of debt, and the Court of King’sBench, which had a monopoly over actions of trespass (trespass to land excepted) andwhich was at this very time extending the boundaries of its jurisdictional competencethrough the device of the bill of trespass in Middlesex.9

• The differences between the two courts on this issue were not resolved until thegreat case Slade v Morley (1597-1602) B&M 420. The plaintiff sold his crops tothe defendant who thereupon promised to pay the plaintiff £16. The plaintiff suedin the King’s Bench for the money in assumpsit (that is an action of trespass onthe case alleging that the defendant undertook, assumed, to do something). At thetrial a special verdict was taken, finding the facts but leaving their interpretation asa matter of law to the judges. The judges of the King’s Bench declined to find forthe plaintiff but took the case before the informal Court of Exchequer Chamber,10

where it was argued some four times. In the end, the Exchequer Chamber seemsto have been unable to agree and the King’s Bench itself gave judgment for theplaintiff. The case was not taken on error and thereafter the principle wasestablished that a defendant could be made liable in trespass even for non-payment of debts.

Questions

What difficulties were faced by the plaintiff in the Humber Ferry Case?

What was Frowicke’s view in Orwell v Mortoft?

How was Slade’s Case resolved?

8 See ‘Covenant’ on page xxxx ofthis subject guide.

9 See Chapter 5 ‘Bills ofMiddlesex’.

10 See Chapter 3 ‘Informalappeals’.

46


Conversion, deceit and defamationReading


3rd edition [ISBN 0 406 53101 0] 449-451, 521-2 and Chapter 24.

Simpson, A.W.B. Legal Theory and Legal History.


The action of trespass on the case established in Waldon v Marshal11 could be developedto allow the plaintiff to recover for loss resulting from any activity of the defendantwhich could be characterised as wrongful by an appropriately worded writ. The onlylimitations were those imposed by the availability of existing remedies coupled withthe principle that there should be only one form of action for each cause of action andby the general jurisdictional limitations accepted by the royal courts themselves. Aswe have seen the action of assumpsit successfully emerged from these limitations.

ConversionLiability in the old action of detinue, as we have seen,12 had been extended beyonddefendants directly entrusted with the plaintiff’s property to those who could be saidto have found it. An alternative procedure, which avoided the limitations of the olderaction, was to bring an action in trespass on the case alleging that the defendant hadconverted the goods to his own use.

DeceitThe possibility of suing in trespass on the case for loss suffered as a result ofdeception is explored in Shipton v Dogge (1442) B&M 391.13 The natural extensionof this line of development was, however, stifled in the early 17th century by its closeassociation with the action of assumpsit.

• In Chandelor v Lupus (1604) B&M 518, it was held that a seller was not liable for even a fraudulent misdescription which did not amount to a warranty.

• When therefore in the late 18th century the courts permitted recovery fornon-contractual deceit in Wilkinson v Coverdale (1793) 1 Esp. 75 it was perceivedas a new departure filling a gap in the existing scheme of remedies.

DefamationDefamation was not originally of any concern to the king’s courts. The church courtshad a virtual monopoly of such proceedings based upon the idea that such an act was abreach of good neighbourly conduct. The king’s courts would restrain the ecclesiasticaltribunals from entertaining allegations that amounted to secular crimes, callingsomeone a ‘thief’ for example, and so came in time to provide a remedy themselvesfor such allegations. This was achieved by an allegation in an action of trespass on thecase that the plaintiff had suffered loss as a result of the defamatory words.

By the end of the 16th century there was an extensive secular jurisdiction and thechurch courts were progressively being deprived of the right to hear any but casesbearing directly upon church affairs.

Alternative remedies for breach of contractReading


3rd edition [ISBN 0 406 53101 0] 372-3.

Barbour, W.T. A History of Contract in Early English Equity. (Oxford: Oxford

University Press, 1914).

11 See ‘Trespass by bill’ on pagexx of this subject guide.

12 See ‘Debt, detinue andcovenant’ on page xx of this

subject guide.

13 See ‘A remedy for non-feasance’ on page xx

of this subject guide.

47


Helmholz, R. ‘Assumpsit and fidei laesio’ (1976) Law Quarterly Review 406 =

Helmholz, R. Canon Law and the Law of England (London: Hambledon, 1987)

[ISBN 0 907628 931] 263.

The Court of Chancery During the late 15th and 16th centuries the Court of Chancery provided remedies forplaintiffs who were frustrated by the old common-law system of remedies. Thenavailability of these alternatives seems to have operated as a factor in persuading thecommon-law courts to revise the remedies offered by developing trespass on the casefor assumpsit.

The church courtsSide by side with these remedies in Chancery the church courts provided some reliefthrough means of their remedy for breach of faith (fidei laesio), the pattern of whichmay have provided a model for the common law.

Doctrine of considerationReading


3rd edition [ISBN 0 406 53101 0] 399-400.



Ibbetson, D.J. ‘Consideration and the theory of contract in the 16th-century

common law’ in Barton, J.L. (ed.) Towards a General Law of Contract.

(Berlin: Duncker & Humblot, 1990) [ISBN 3 428 06809 2].





After Slade’s Case14 the most important question concerned the limits of the defendant’sliability to perform his promises. Was there any limit to be imposed? The early notionof consideration, found for example in the law of uses, was of ‘things considerable’.There is much disagreement over the origins of consideration: some like Simpsonregard it as a borrowing from canon and civil law ideas, others like Ibbetson (1990)argue for a common-law origin. The context of most litigated contracts seems to haveled to this hardening into valuable consideration; only those promises which werepaid for should be enforced.

In the late 18th century Lord Mansfield C.J.K.B. sought to reopen the concept ofconsideration.

• In Pillans v van Miérop (1765) 3 Burr. 1664, the Court of King’s Bench upheld a promise made in writing without further consideration.

• In Rann v Hughes (1778) 4 Bro. P.C. 27, this was overturned in error in the Houseof Lords.15

Question

What are the origins of the doctrine of consideration?

14 See ‘Contrast between the courts’ on page xx of this

subject guide.

15 See ‘House of Lords’.

48


Rise of negligenceReading





Prichard, M. Scott v Shepherd (1773) and the Emergence of the Tort of Negligence.

Selden Society Lecture 1973 (London: Selden Society, 1976).

Prichard, M. ‘Trespass, Case and the Rule in Williams v Holland’ [1964]


Trespass and caseBy the end of the 18th century, the common law had developed an understanding ofthe artificial distinction between trespass vi et armis and trespass on the case.

In Scott v Shepherd (1773) 2 W.Bl.892; 3 Wils. KB 402, although they contrived todisagree in the result. the judges shared Blackstone, J.’s, opinion that:

‘the settled distinction [was that] where the injury is immediate, an action of

trespass will lie; where it is only consequential, it must be an action on the case.’

(2 W.Bl. at 894)

Nothing appeared to depend upon the mental attitude of the defendant.

• In Mitchell v Allestry (1676) B&M 572, the defendant’s servant had been traininga horse in Lincoln’s Inn Fields and was sued by someone hurt when the horsebolted. On the face of it the harm was direct but failing in an earlier action intrespass the plaintiff succeeded in the case on the basis that the defendant hadbrought about his loss through his thoughtlessness. Today we should unhesitatinglyhold such a defendant liable in negligence which is but a development of the oldaction on the case.

AccidentsWhat shifted attention from the form of the harm done to the mental state of thedefendant was the growth of suits for running-down accidents — traffic accidents —themselves a product of increased technological efficiency and better roads. A victimof an ‘accident’ was apparently the recipient of a forcible trespass but equally clearlyin most instances the accident was the product of a lack of skill or care. A complicationwas that, in an age of coachmen, it would often be necessary to sue the passenger-employer but he, unless inciting the driver to drive more furiously, could only beliable in case for creating the occasion by his negligence.

Trespass and case could not be joined in the same suit and, until the decision inWilliams v Holland (1833) 10 Bing. 112 that a plaintiff could allege a direct forcibleharm in the form of an allegation in Case, there was always the possibility of theplaintiff’s being caught out by facts which emerged at the trial — the supposedpassenger-employer turning out to be the driver for example. There was a slightsetback when the Common Law Procedure Act 1852 allowed joinder of claims intrespass and case. This led to a revival of trespass actions but this shift was short-livedas the trend was inexorably towards case and its necessary emphasis on thedefendant’s state of mind.

PostscriptThe complete rethinking of the distinction between trespass and case in terms of thedefendant’s mental state was not completed until Fowler v Lanning [1959] 1 QB 426when Diplock, J., held that, in order to sustain an action in trespass, the plaintiff had

to plead that the defendant acted either deliberately or negligently. This had neverbeen part of the old understanding of pleading in trespass but was justified by theneed to differentiate the two remedies in the modern law.

Question

Why does negligence take over the work of trespass in the early modern period?


• give an account of the old common-law actions for agreements

• explain the rise of trespass actions

• show how case — in the form of assumpsit actions — came to replace the older

remedies

• account for the doctrine of consideration

• distinguish trespass and case and explain why this distinction was problematic in

the common law.

Questions1. What were the bases of the common law’s jurisdiction in contractual matters

before 1600?

Covenant, debt and detinue were the main writs founding the common-law

court’s jurisdiction in this area. You should characterise the nature and

disadvantages of each. Cases could come before the courts as bills and,

increasingly, as claims in trespass.

2. What were the main disadvantages of the old contractual actions from the point

of view of the plaintiff?

Covenant was hampered after 1321 by the requirement of a deed as proof; it lay

in any case for non-fulfilment, not mis-performance. Debt was appropriate for

claims to fungibles and gave the defendant the option of wager of law.

3. ‘Trespass lost its original sense by being identified with trespass vi et armis and

distinguished from case. It was from this distinction that the modern sense of

trespass grew.’ Explain and comment on this passage.

Trespass meant wrong. Trespass vi et armis is violent wrongdoing though this

sense was threatened by inappropriate claims. The introduction of a new

dimension of wrongs after 1369 with a different procedural character forced the

Common lawyers to distinguish the two types of wrong, often unsuccessfully,

into direct and indirectly caused wrongs.

4. Explain the problems created by the willingness of the royal courts to admit

trespass actions without contra pacem in the second half of the 14th century.

After explaining the nature of the change in 1369 (Waldon v Marshal) illustrate

the difficulties of distinguishing trespass and case.

5. ‘Nonfeasance could only be a legal wrong if there was a legal duty to act; and if

that duty was imposed solely by promise or contract then the proper remedy was

covenant or debt.’ How was this obstacle to the development of the action of

assumpsit overcome?

Explain how the courts came to characterise the failure to act as a deceit (Doige’s

Case) and then to generalise this (Orwell v Mortoft).

49



50

Notes

51

Chapter 8: Criminal law

Chapter 8

Criminal lawEssential reading


3rd edition [ISBN 0 406 53101 0] Chapters 28-29.



Further readingBaker, J.H. ‘Criminal Courts and Procedure at Common Law’ in Cockburn, J.S. (ed.)

Crime in England. (London: Methuen, 1977) [ISBN 0 416 83960 6] 15 =



IntroductionAlthough the legal records relating to crime and criminals have been extensivelyworked over by social historians, they offer relatively little of interest to the legalhistorian. This is because criminal law was not systematically developed by lawyersin the same way as the civil law. Lawyers were excluded from participating in trialsfor serious crime (felony) until the 19th century (though there is evidence of theirinformal involvement prior to this in the case of those who could afford to employthem). Although Milsom is too dismissive of criminal legal issues he is right to stresstheir relative unimportance in the history of the common law.

This chapter deals with the means of initiating criminal proceedings, modes of trialand the substantive classifications of crimes. It proceeds to examine the ways inwhich the death penalty for felony was mitigated in practice.

Appeals and indictmentsReading


3rd edition [ISBN 0 406 53101 0] 573-578.



The common law of crime has its origins in the devices used to protect royal interestsin suppressing violent wrongs and the facilities developed for assisting privatecomplainants to bring private prosecutions.

Private appealsPrivate prosecutions, known confusingly as appeals (of felony), were initiated in theShire Court,1 a fact which reveals their communal origin. With the development of theeyre visitations of the royal judges, more and more appeals were prosecuted beforeroyal judges. In either case trial was by battle and was fought by prosecutor and accusedin person before the court. If the accused defeated his accuser he was acquitted; ifhimself defeated he was, if not already dead, immediately hanged as a felon. Although

1 See Chapter 2 ‘Local courtsand local justice’ on page 6 of

this subject guide.

52


appeals could be initiated by individuals, once commenced, an appeal could not becompromised except with the king’s, that is the court’s, approval. Compromising ortechnically compounding a felony was itself felonious.

IndictmentsIf no private prosecutor appeared to prosecute a felony the crime would in all likelihoodfigure in the lists of offences which the king’s travelling justices required local juriesto present at the beginning of the eyre. Any discrepancies between these lists andother records, for example those kept by the coroners, led to a heavy fine as theprosecution of binders was viewed as a source of profit and such equivocationsappeared to be an attempt to evade payment. Doubtless there was a governmentalresponsibility to suppress crime but in practice it took second place to fiscal interests.

Trial in criminal casesTrial of cases in which there was no private appellant capable of fighting a battle wasoriginally by ordeal: a piece of iron would be heated and carried by the accused for a few paces after which his hand would be bandaged. In a few days the hand wasinspected — if healing had commenced the accused was innocent; if not, guilty. Intheory what was being tested was the veracity of the victim’s oath, in this case ofinnocence. In 1215 the Roman Church forbade the clergy to involve themselves inordeals and the effect of this ruling in England was to ensure that the ordeal was nolonger available for use in criminal trials. After a period of hesitation the royal judgesbegan in the early 1220s to impose trial by jury. This jury was drawn from thepresenting jury which had been responsible for bringing the criminal to the court’sattention. In theory trial by jury was accepted voluntarily by the accused but a prisonerwho declined trial would be tortured to death by being laden with weights and deprivedof nourishment: those who died in this way died unconvicted so that neither theirlands nor their goods were forfeit.

The members of the trial jury were drawn from the locality and were therefore likelyto know something of the circumstances of the accusation. But it was by no meansnecessary and in some cases possible that they should. We do not know what meanswere employed to inform early juries — rules of evidence designed to control whatwas and what was not admissible are not recorded before the 17th century. Proceedingsin court were limited to the reading of the indictment and the prisoner’s plea. Sincethe plea was nearly always ‘not guilty’, there was no room for further legal debate —the issue of guilt was immediately put to the jury. The odd rare plea of autrefois acquitfrom a prisoner who had previously been tried and acquitted (or less occasionallyeven autrefois convict) did little to disturb this simplicity.

The effect of the blanket ‘not guilty’ plea was to inhibit the development of legaldoctrine relating to criminal law. Before the 16th century, most of the developments inthe common law occurred, as recorded in the year books, as issues of pleading: thiswas not possible in the criminal law. Milsom argues that the lasting consequence wasa devaluing of the importance of criminal law.

From the 17th century onwards the development of the law came to result fromappellate or quasi-appellate decisions of the courts in Westminster after verdict.2

Convicted prisoners were not given a right to appeal until 1907 but sympathetic judgescould refer hard cases for determination by what became known as the Court forCrown Cases Reserved. Following a decision by this informal gathering of judges theproceedings would be recommenced or, in some cases, a royal pardon obtained.

2 See Chapter 3 ‘Appellatetribunal’.

53


Questions

How were criminal cases brought to trial in the early common law?

What legal issues could arise in a criminal trial?

Felony, trespass and misdemeanourReading


3rd edition [ISBN 0 406 53101 0] 571-3, 581-4.



FelonyThe serious crimes, prosecuted either on appeal or indictment, were called felonies.The term has a feudal origin and seems to have represented the wrong done to a lordby a tenant. The penalty on conviction for all felonies, save theft of goods worth lessthan 12 pence (12d), was death. Probably as a relic of the feudal wrong, any land heldby the convict escheated to his lord while his goods were seized by the king.

MisdemeanourLesser offences against the king’s peace came to be prosecuted in the king’s courts bybill or writ of trespass from the early 13th century. Harding has suggested that thisdevelopment stems from attempts to control the activities of royal agents whosewrongdoings were a proper concern of the king’s courts. The early trespasses orwrongs were indifferently criminal or civil in modern terms — the plaintiff/prosecutorsought compensation for his wrong and a losing defendant was also made to settlewith the king for his wrongdoing by being imprisoned until he paid to make an end (a fine) of the matter.

Justices of the peaceThe distinction between civil torts (wrongs), pursued for compensation, and criminalmisdemeanours was taken a stage further in the 14th century with the creation ofpermanent local justices of the peace with powers to hear and summarily punishminor wrongs. Nevertheless there is some evidence, poorly researched, that suchjustices provided a mechanism for the recovery by private parties of compensation forwrongdoing down until the end of the 18th century — most probably by makingrecompense to the victim a condition of lenient punishment.

These justices were given extensive powers to investigate and punish lesser offencesby a large number of statutes. To these in the 16th century was added a responsibilityfor investigating and reporting to higher courts those guilty of felonies. Herein lies thebeginnings of the modern magistrates’ committal proceedings, although in origin thejustices were not seen as impartial judges in such cases but as agents of the crownresponsible for taking depositions and presenting them at the quarterly meetings ofjustices, the Quarter Sessions, which had power to try felonies with a jury or at theAssizes before a royal judge. It was the growth of the police force as an investigativebody in the 19th century which transformed this aspect of the criminal process. Frombeing the main investigators of serious crime the magistrates became a means ofreviewing the evidence before passing it on to the trial court. This development in turnreduced the significance of the grand jury, the body of supposed neighbours connectedwith the old presenting jury, who had, until their abolition in 1933, to determinewhether or not a ‘true bill’ or reliable accusation had been made. The regular sitting oflocal justices for committal purposes enhanced the formalisation of their proceedingsfor summary offences.

54


Question

What was the difference between felony and misdemeanour?

Benefit of clergy, pardon and sanctuaryReading


3rd edition [ISBN 0 406 53101 0] 584-591.

Cornish, W.R. and Clarke, G. de N. Law and Society in England 1750-1950.

(London: Sweet & Maxwell, 1989) [ISBN 0 421 31150 9] Chapter 8.

There existed a variety of devices whereby the rigour of the penalty of death for felonywas mitigated.

Benefit of clergyIn the 12th century, the quarrel between church and state regarding the church’sjurisdiction over its ordained clergy was settled in favour of the church’s claim, anoutcome hastened by the outcry over the death of Thomas Becket, Archbishop ofCanterbury at the hands of those who supposed themselves loyal to the king. Thereafterit was agreed that criminous clerks, clergy accused of serious crime, should have theirguilt established by a secular court and then, on being claimed by the church, beremitted to the ecclesiastical authorities for punishment. In the period before 1300 themajority of those who escaped secular punishment in this way seem genuinely to havebeen clerics although the secular courts were in some difficulty if a challenge were tobe made to the church’s claim: since literacy was closely connected with ecclesiasticalpositions, the church providing much of the education available in the Middle Ages,one simple device was to ask the accused to read. In this way a standard test ofreading a portion from the Book of Psalms, readings familiar from every dayChristian devotion, emerged as a standard test of clergy for this purpose. In somecases mere ability to recite a verse from Psalm 51 (beginning ‘Have mercy upon me,O Lord…’) from memory could serve to satisfy a generous court. Since passing thistest enabled one to escape the gallows it was popularly known as the ‘Neck Verse’.

By 1600 the availability of this benefit of clergy was distorting the applicability of thecriminal law. Already in the mid-16th century statutes had provided that certainoffences were to be non-clergiable: that is, that clergy could not be pleaded andtherefore the penalty exacted in full. This pattern continued for the next two centuriesso that there emerged two sorts of felony, clergiable and non-clergiable, the differencebeing determined by an often irregular application of legislative principle. In order togive full effectiveness to this distinction it was necessary to extend the scope of thebenefit first to women, hitherto excluded as they could not be admitted to HolyOrders. This was achieved by statute in 1691. Then, since women were not obliged tobe literate to claim their statutory privilege, the same right was extended to all men,literates and illiterates alike, in 1706.

After 1489, clergy could only be claimed on a first indictment: recidivists were liableto the death penalty. To enable them to be identified first offenders were, unless theyreally were clergymen, branded in the hand. In the course of the 18th century, courtswere given powers to order transportation and other corporal punishment instead. Thebenefit remained a feature of the system until 1827.

PardonsThose unable to benefit from a claim of clergy, particularly in the later period becausethe offence of which they were convicted was nonclergiable, could still escapepunishment if awarded a royal pardon. The earliest systematic use seems to have been

to remit punishment in case of accidental or nondeliberate killing. From the 17thcentury it became policy to pardon convicts on their agreeing to be sent overseas or transported as servants to the new colonies of the Americas. This practice wasregularised in the 18th century with Australia becoming the new destination after the American Declaration of Independence. Only after the abandonment of the system in 1868 did it become necessary to contemplate the imprisonment of personsfor long periods.

Pardons could also be granted, as they still are, free of conditions, in cases ofmiscarriage of justice. Before 1848 there was no method of quashing a jury verdict ofguilty and pardons were therefore used to give effect to the judges’ informal judgmentsin the Court for Crown Cases Reserved.

SanctuarySanctuary was the name given to the protection associated with church buildings. Inthe period down to 1624, those guilty of felony could escape if they succeeded inreaching a parish church or other place of sanctuary before they were apprehended.They then had a period of grace, commonly 40 days, within which to abjure therealm: that is, take an oath to travel to the nearest port and go abroad into exile. Somesanctuaries claimed a right to harbour criminals permanently and grievances againstsuch abuses led to their progressive restriction in the course of the 16th century andelimination in 1624.

Question

Why were so many methods of escaping the death penalty developed?


• give an account of criminal trial at common law

• account for the relative undevelopment of the criminal law

• describe the ways in which an accused mught escape punishment and evaluate the

effect of these devices on the substantive law.

Questions1. Account for the relative lack of development of the common law of crimes.

Although the jury replaced the ordeal after 1220 with eventual consequences for

pleading in civil cases tried by jury, the judges were unwilling to allow

defendants in criminal cases to plead other than the general issue (‘not guilty’).

This in turn restricted the scope for judicial development of the law of crimes,

a development which has only fully occurred since the establishment of the Court

of Criminal Appeal in 1907.

2. To what extent is the common law of crimes a reflection of the governmental

concerns of a medieval monarchy?

What we now call crimes were formerly classified as pleas of the crown. Your

answer will need to bring out the extent to which the common law was really

bounded by the royal interest in suppressing violent crime and treason. What

sorts of crimes were left out of account?

55


56


3. What effect did the existence of means of escaping justice have upon the

development of the criminal law?

The existence of pardons and benefit of clergy and to a lesser extent sanctuary

mitigating the rigours of the criminal law distracted attention from the need to

moderate the applicability of the death penalty as the sole punishment for felony

(theft of under 12d apart).

4. What factors enabled the death penalty to be retained as the invariable judgment

on conviction for all serious crimes without distinction for such a long period?

What was the effect upon the substantive law of crimes?

The ease with which those accused or convicted of felony could escape

reinforced the pattern of forcing defendants to plead the general issue and go to

the jury rather than permitting special pleading which would have placed issues

before the judges.

57

Appendix: Some wider reading

Appendix

Some wider readingAs suggested in the Introduction your understanding and knowledge of the details ofsyllabus can be usefully supplemented by more extensive reading in social andpolitical history. The following is a list of some texts you may find interesting. It is byno means exhaustive.

MacFarland, Alan The Origins of English Individualism. (Oxford: Blackwell, 1978)

[ISBN 0 631 12761 1].

MacFarland’s general thesis that the distinctive individualism of the British people is a product of their social and legal history has been the subject of criticism but remainsa valuable tool for investigating the particularity of the common law. He explores a related theme, the absence of organised crime in England, in

MacFarland, Alan The Justice and the Mare’s Ale. (Oxford: Blackwell, 1981)

[ISBN 0 63112681 3].

Material from the criminal law has been extensively used by social historians, notalways in ways of which legal historians approve — see:

Thompson, E.P. Whigs and Hunters. (Harmondsworth: Allen Lane, 1975;

Penguin, 1990) [ISBN 014 012479 9]. Social rather than legal history but written

around an important shift in the use of legislation during the 18th century.

Hay, D., Linebaugh, P. and Thompson, E.P. (eds) Albion’s Fatal Tree.

(Harmondsworth: Allen Lane, 1975). An early example of the ‘new legal history’

setting legal change in a wider social context this was the subject of a famously

critical review (entitled ‘Albion’s Fatal Flaws’) by John Langbein in 98 Past &

Present (1983).

A less controversial study is:

Gattrell, V.C.H. The Hanging Tree. (Oxford: Oxford University Press, 1996)

[ISBN 0 19 285332 5]. A richly illustrated account of the practice of public

execution in the 18th and early 19th centuries.

More central to the syllabus are the following:

Harding, Alan A Social History of English Law. (Harmondsworth: Pelican, 1966).

Now long out of print but still stimulating and well worth searching for.

Clanchy, Michael England and its Rulers, 1066-1272. (London: Blackwell, 1998)

2nd edition [ISBN 0-631-20556-X (hbk); 0-631-20557-8 (pbk)].]

Although published in a standard history of England series, written with a raremastery of the legal material. Also valuable, though wider-ranging, is Clanchy’s studyof mediaeval literacy:

Clanchy, Michael From Memory to Written Record. (Oxford: Blackwell, 1993)

2nd edition [ISBN 0 631 17823 6].


58

Notes

Notes

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Notes

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